Labour Before the Law: The Regulation of Workers' Collective Action in Canada, 1900-1948 9781442657274

Citation preview

Labour Before the Law: The Regulation of Workers’ Collective Action in Canada, 1900–1948

Judy Fudge and Eric Tucker

UNIVERSITY OF TORONTO PRESS Toronto Buffalo London

Originally published by Oxford University Press Canada 2001 © University of Toronto Press Incorporated 2004 Toronto Buffalo London Printed in Canada ISBN 0-8020-3793-3 (paper)

Printed on acid-free paper

National Library of Canada Cataloguing in Publication Fudge, Judy Labour before the law : the regulation of workers’ collective action in Canada, 1900-1948 / Judy Fudge and Eric Tucker. (The Canadian social history series) Includes bibliographical references and index. ISBN 0-8020-3793-3 1. Labor unions—Law and legislation—Canada—History—20th century. 2. Labor laws and legislation—Canada—History—20th century. I. Tucker, Eric II. Title. III. Series: Canadian social history series. KE3170.F82 2004

344.7101988909 C2004-902781-6 KF3390.ZA2F82 2004

University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council. University of Toronto Press acknowledges the financial support for its publishing activities of the Government of Canada through the Book Publishing Industry Development Program (BPIDP)

Contents Foreword / v Preface / vii Abbreviations / x 1 Introduction / 1 PART I: THE EMERGENCE OF INDUSTRIAL VOLUNTARISM 2 Courts and Conciliation: The Norms of Responsible Unionism, 1900–1906 / 16 3 Accommodation and Coercion: The Rise of Industrial Voluntarism, 1907–1914 / 51 4 Industrial Voluntarism Suspended, 1914–1918 / 89 5 The Postwar Confrontation and the Restoration of Industrial Voluntarism, 1919–1925 / 104 6 Industrial Voluntarism in a Prosperous Interregnum, 1925–1929 / 139 PART II: TOWARDS A NEW REGIME OF INDUSTRIAL LEGALITY 7 Industrial Voluntarism in Distress: The Early Depression Years, 1929–1935 / 153 8 Canada’s New Deals for Labour, 1936–1939 / 192 9 The Exhaustion of Industrial Voluntarism, 1939–1942 / 228 10 Recognition and Responsibility: The Achievement of Industrial Pluralism, 1943–1948 / 263 11 The Hegemony of Industrial Pluralism / 302 Notes / 316 Index / 382

2001 PATRONS OF THE SOCIETY

Aird & Berlis Blake, Cassels & Graydon LLP Davies, Ward & Beck Gowling Strathy & Henderson McCarthy Tétrault Osler, Hoskin & Harcourt LLP Torkin Manes Cohen & Arbus, LLP Torys Weir & Foulds

The Osgoode Society is supported by a grant from The Law Foundation of Ontario.

The Society also thanks the Law Society of Upper Canada for its continuing support

Foreword

In their preface, the authors rightly note that Canadian labour history has flourished greatly over the last thirty years. Indeed the field has been an exciting one and both traditional scholars who have focussed on trade union activity itself and neo-Marxist writers who approach the subject from the broader perspective of working-class culture have made indispensable contributions. There is also a valuable periodical literature and scholars writing since the late 1970’s in the journal Labour/Le Travail have made particularly noteworthy contributions. In this literature, there has been no lack of attention paid to numerous issues involving the legal rights of unions and employers, and of workers and bosses, but often there has been a lack of clarity in the discussion of labour-law issues. This book, based both on a careful sifting of the secondary literature and on painstaking archival research, effectively and authoritatively addresses this situation. It carries the field forward from the late nineteenth century, where much earlier work had been focussed, into the first half of the twentieth century. This period, its authors demonstrate, saw a critical transition from a legal regime characterized by predominance of the values of legal individualism and freedom of contract to an era of industrial pluralism. The essential components of that regime, they argue, ‘comprised collective bargaining legislation administered by independent labour boards and a system of grievance arbitration to enforce collective agreements.’ Industrial pluralism, they assert, became so ‘hegemonic’ that everything that went before it came to be treated as pre-history, hardly worthy of attention. This important book demonstrates why and how the new regime was put in place and assesses the degree to which it simultaneously v

vi

L ABOUR BEFORE THE LAW

embodied a marked departure from what preceded it and a revitalized commitment to market ordering and voluntarism. Of course industrial pluralism, as subsequent events demonstrate, was only a moment in the history of labour relations in this country. But it established a system of vast importance, legal and otherwise, and Professors Fudge and Tucker have given us what probably will remain the definitive study of an innovative and critical phase in industrial relations in Canada. The purpose of The Osgoode Society for Canadian Legal History is to encourage research and writing in the history of Canadian law. The Society, which was incorporated in 1979 and is registered as a charity, was founded at the initiative of the Honourable R. Roy McMurtry, a former attorney general for Ontario, now Chief Justice of Ontario, and supported by officials of the Law Society of Upper Canada. Its efforts to stimulate the study of legal history in Canada include a research support program, a graduate student research assistance program, and work in the fields of oral history and legal archives. The Society publishes volumes of interest to the Society’s members that contribute to legal-historical scholarship in Canada, including studies of the courts, the judiciary and the legal profession, biographies, collections of documents, studies in criminology and penology, accounts of significant trials, and work in the social and economic history of the law. Current directors of The Osgoode Society for Canadian Legal History are Robert Armstrong, Jane Banfield, Tom Bastedo, Brian Bucknall, Archie Campbell, J. Douglas Ewart, James Flaherty, Martin Friedland, John Honsberger, Kenneth Jarvis, Allen Linden, Virginia MacLean, Wendy Matheson, Colin McKinnon, Roy McMurtry, Brendan O’Brien, Peter Oliver, Paul Reinhardt, Joel Richler, James Spence, and Richard Tinsley. The annual report and information about membership may be obtained by writing: The Osgoode Society for Canadian Legal History, Osgoode Hall, 130 Queen Street West, Toronto, Ontario. M5H 2N6. Telephone: 416-947-3321. E-Mail: [email protected]. R. Roy McMurtry President Peter N. Oliver Editor-in-Chief

Preface

This book is a study of the legal regulation of workers’ collective action from 1900 to 1948. It starts in 1900 because that year marks the beginning of the Second Industrial Revolution, an important point of transition in the development of capitalist social relations in Canada. It ends in 1948 with the establishment of the current regime of industrial legality, industrial pluralism, characterized by a detailed set of legal rules and procedures that define which groups of workers may bargain collectively and when they can collectively withdraw their labour power. This body of law achieved a hegemonic status that no prior legal regime had even approached and has become so central to our everyday thinking about labour relations that one might be forgiven for thinking that everything that came earlier was, truly, before the law. But, as this study demonstrates, workers who acted collectively prior to 1948 often found themselves before the law, whether appearing before a magistrate charged with causing a disturbance, facing a Superior Court judge to oppose an injunction, or in front of a statutory board investigating a labour dispute and making recommendations for its resolution. Labour Before the Law offers a socio-legal history of the creation, development, and transformation of this prior regime. Like its subject, this work is a collective creation, the fruit not just of a collaboration between two authors, but the product of a community of scholars and networks of support that we would like to take this opportunity to acknowledge and thank. Canadian labour history has flourished over the past 30 years and this book could not have been written without the contributions made by the many scholars on whose work we have drawn. We cannot vii

vi i i

LABOUR BEFOR E THE LAW

possibly name everyone here, so we have limited ourselves to singling out those who have had a more direct hand in the production of this text. Over the many years it has taken to complete this project, we have been fortunate in finding able research assistants who have combed through vast piles of materials and guided us to the information we needed. These include: Boniface Ahunwan, Amanda Clyne, Jon Cocker, Amanda Glasbeek, Tim Gleason, Orion Jhaj, Irit Kelman, Marcus Klee, Ronald Mauti, James Muir, Henning Von Bauer, and Janice Warren. A special debt of gratitude is owed to Malcolm Davison, whose early work on the project provided us with a model of organization that we struggled to sustain. Numerous colleagues and friends, including Reuben Hasson and Chris Tomlins, have read and commented on parts of the manuscript. The Toronto Labour Studies Group provided a forum for presenting early drafts of much of the book and we only wish we had heeded their excellent advice much earlier. Craig Heron generously shared the manuscript of The Workers’ Revolt prior to its publication, and David Frank assisted us in locating a photograph. Peter Oliver, in his capacity as Director of the Osgoode Society, read an early draft of the manuscript, encouraged us, and organized two anonymous readers who gave us many helpful suggestions. Greg Kealey, editor of the Canadian Social History Series, was an early supporter of the project, reading and commenting on a couple of drafts. His comments and encouragement helped transform a manuscript into a book. We have appreciated the work that Len Husband, Laura Macleod, and Phyllis Wilson at Oxford University Press have done to bring this book to print. We would also like to thank Richard Tallman for his careful reading and meticulous editing of the manuscript. A special debt of thanks is owed to Bryan Palmer, who read the manuscript at the request of our publisher, gave us the focus for this book, and encouraged us to begin another. This research was supported by a grant from the Social Sciences and Humanities Research Council. Osgoode Hall Law School, York University provided additional money for research assistance and sabbatical leaves, which were essential for writing this book. During one of those sabbaticals, Jim Phillips, at the Faculty of Law at the University of Toronto, arranged for office space located in the law library, which is entered through the doors of Sir Joseph Wesley Flavelle’s former residence. We would also like to acknowledge the unstinting and valuable assistance we have received from numerous archivists and librarians

P R E FAC E

ix

at the National Archives of Canada, the Ontario Archives, the Nova Scotia Archives, Alberta Archives, Osgoode Hall Law School Library, and the Law Library at the University of Toronto. Pat Armstrong and Hugh Armstrong graciously opened their home to Eric during a research trip to Ottawa. Judy would like to thank Ken Massicotte for carrying boxes of papers across too many miles to count and for seeing this project through. Eric would like to thank William and Selma Tucker for their encouragement, support, and gentle queries over many years about the progress of the book. Somehow Myka and Zak have learned to live with their often distracted dad, while reminding me that, yes, there is life outside my head. Finally, to Zelda, who has been there for me through it all.

Dedication To Harry Glasbeek, teacher, colleague, and friend extraordinaire.

Abbreviations

ACCL ACWA AFL ALU AMW APP BRT BTC BWIU CAALL CCF CCL CFWIU CGE CIO CLDL CMA CPC CPR CSU CTCC DND EAC FTUAA GTR IATSE ICAA

All-Canadian Congress of Labour Amalgamated Clothing Workers of America American Federation of Labor American Labor Union Amalgamated Mine Workers of Nova Scotia Alberta Provincial Police Brotherhood of Railway Trainmen Building Trades Council Beet Workers’ International Union Canadian Association of Administrators of Labour Law Co-operative Commonwealth Federation Canadian Congress of Labour Chesterfield and Furniture Workers’ International Union Canadian General Electric Congress of Industrial Organizations Canadian Labor Defence League Canadian Manufacturers’ Association Communist Party of Canada Canadian Pacific Railway Canadian Seamen’s Union Confédération des Travailleurs Catholique du Canada Department of National Defence Economic Advisory Committee Freedom of Trade Union Association Act Grand Trunk Railway International Alliance of Theatrical/Stage Employees Industrial Conciliation and Arbitration Act x

ABBREV I AT I O N S

IDIA IDIC IFWU ILB ILGWU IMB IMMSW IPA ISA ITU IUNTW IWA IWW JCPC LIRA LWIU MTC MWB MWUC NBFL NBFLU NIRA NLRA NLRB NLSC NUWA NWLB NWLRB OBU OPP ORC PSA PWA RCIR RCMP RCWU RLDA RNWMP SDP SPC SWOC TLC

Industrial Disputes Investigation Act Industrial Disputes Inquiry Commission International Fur Workers’ Union Industry and Labour Board International Ladies’ Garment Workers Union Imperial Munitions Board International Mine, Mill and Smelter Workers’ Union Industrial Peace Act Industrial Standards Act International Typographical Union Industrial Union of Needle Trades Workers International Woodworkers of America Industrial Workers of the World Judicial Committee of the Privy Council Labour and Industrial Relations Act Lumber Workers’ Industrial Union Metal Trades Council Minimum Wage Board Mine Workers’ Union of Canada New Brunswick Federation of Labour New Brunswick Farmer Labour Union National Industrial Recovery Act (US) National Labor Relations Act (US) National Labor Relations Board (US) National Labour Supply Council National Unemployed Workers Association National War Labour Board National War Labour Relations Board One Big Union Ontario Provincial Police Order of Railway Conductors Professional Syndicates Act Provincial Workmen’s Association (NS) Royal Commission on Industrial Relations Royal Canadian Mounted Police Relief Camp Workers’ Union Railway Labour Disputes Act Royal North-West Mounted Police Social Democratic Party Socialist Party of Canada Steel Workers Organizing Committee Trades and Labor Congress of Canada

xi

xi i

L ABOUR BEFORE THE LAW

UAW UBRE UE UFA UMWA URWA USWA VTLC WFM WUL

United Automobile Workers United Brotherhood of Railway Employees United Electrical, Radio and Machine Workers United Farmers of Alberta United Mine Workers of America United Rubber Workers of America United Steel Workers of America Vancouver Trades and Labour Council Western Federation of Miners Workers’ Unity League

LABOUR BEFORE THE LAW The Regulation of Workers' Collective Action in Canada, 1900-1948

In this groundbreaking study of the relations between workers and the state, Judy Fudge and Eric Tucker examine the legal regulation of workers' collective action from 1900 to 1948. They analyze the strikes, violent confrontations, lockouts, union organizing drives, legislative initiatives, and major judicial decisions that transformed the labour relations regime of liberal voluntarism, which prevailed in the later part of the nineteenth century, into industrial voluntarism, whose centrepiece was Mackenzie King's Industrial Disputes Investigation Act of 1907. This period was marked by coercion and compromise, as workers organized and fought to extend their rights against the profitoriented owners of capital, while the state struggled to define a labour regime that contained industrial conflict. The authors then trace the conflicts that eventually produced the industrial pluralism that Canadians have known in more recent years. By 1948 a detailed set of legal rules and procedures had evolved and achieved a hegemonic status that no prior legal regime had even approached. This regime has become so central to our everyday thinking about labour relations that one might be forgiven for thinking that everything that came earlier was, truly, before the law. But, as Labour Before the Law demonstrates, workers who acted collectively prior to 1948 often found themselves before the law, whether appearing before a magistrate charged with causing a disturbance, facing a superior court judge to oppose an injunction, or in front of a board appointed pursuant to a statutory scheme that was investigating a labour dispute and making recommendations for its resolution. The book is simultaneously a history of law, aspects of the state, trade unions and labouring people, and their interaction within the broad and shifting terrain of political economy. The authors are attentive to regional differences and sectoral divergences, and they attempt to address the fragmentation of class experience. (The Canadian Social History Series) JUDY FUDGE and ERIC TUCKER both teach at Osgoode Hall Law School, York University.

1

Introduction

[As] the history of the past century has demonstrated, the power of organized labour, the necessary co-partner of capital, must be available to redress the balance of what is called social justice: the just protection of all interests in an activity which the social order approves and encourages. But organized labour itself develops and depends upon power, which in turn must be met in balancing controls in relation to the individual members or workers over whom it may be exercised, as well as to industry and public.1 Justice Ivan Rand, 1946 Today, when a strike is reported in the various media one of the first things we are told is whether or not it is legal, as if legality were the distinctive emblem of legitimacy. The legal status of the workers’ collective action is regarded as more newsworthy than the issues involved or the history of the dispute. Rarely are we told precisely why a particular strike is illegal, just that it is. How did this focus on the legality of workers’ collective action come to be? This book addresses this question. In doing so, it focuses on a particular period of time, from 1900 to 1948, which we argue is crucial for understanding how a specific response to collective conflict over employment relations was institutionalized in Canada. Although we are mindful that this focus on legality risks the charge of presentism, ‘that what exists now is elevated to the height of a presence that must be dealt with as a given, virtually unquestioned and unchallengeable’, the goal 1

2

L A BOUR BEF ORE THE LAW

of our narrative is to show that the opposite is true.2 We propose to do this by concentrating on how the concept of legality as it related to workers’ collective action over a 50-year period was contested by workers, unions, employers, and the state. While legality increasingly became a central concern of these actors as the period progressed, not only did its parameters change, but so, too, did the kinds of workers who engaged in collective conflict and the tactics that they deployed. Workers acting collectively in Canada have always confronted a legal regime that sought to regulate their behaviour in a variety of ways and through numerous means. However, prior to 1900, although the law, especially the common-law doctrines of property and contract, established a broad framework within which productive relations were organized, employers infrequently resorted to legal institutions to deal with workers’ collective action at the workplace and legal regimes designed specifically to deal with labour unrest were the exception rather than the rule. What we characterize as liberal voluntarism prevailed; at the core of this regime of industrial legality was the individual contract of employment operating within a system that left most terms and conditions to be determined according to the labour market. While workers were also privileged to combine with other workers to advance their common interests, employers were free to contract only with those workers who were not part of a combination. In short, they could refuse to hire union members and could fire those who became union members after taking up employment. Moreover, to protect the property and contract rights of employers and of workers who were not members of the union, the criminal law narrowly defined the scope of permissible tactics that workers acting collectively could use to advance their interests. State enforcement of these rights was highly imperfect, but improved through most of this period. While some efforts were being made to enhance the state’s capacity to conciliate disputes, there was little willingness to compel employers or workers to participate in these schemes, and the administrative capacity of the state to intervene remained weak. There were, however, successful campaigns to create some minimum standards, most notably those associated with hazardous conditions in factories and the employment of women and children. The Second Industrial Revolution, which in Canada began in the late 1890s, precipitated a change in both the quality and quantity of legal intervention in workers’ collective action. By 1900, labour markets, although constituted on distinctive regional bases, had spread across the country and employment flourished as a means of

I NTRO D U C T I O N

3

organizing production. Employment relations became a magnet for legal regulation precisely because it was through these relations that most families obtained access to the means necessary for their survival and reproduction, and because, from time to time, their conflictual character threatened to disrupt the social order. Thus, in 1900 the federal state took an active interest in dealing with the labour problem, limiting its intervention, however, to requiring conciliation for disputes that arose in sectors crucial for the national economy. Simultaneously, some provinces also enacted trade dispute legislation, which was to be implemented by a strengthened administrative apparatus. As well, minimum standards increased somewhat in the 1900–48 period, chiefly in regard to women’s wages. But efforts to strengthen conciliation were accompanied by increased legal coercion. More frequently, employers turned to the courts to resist workers’ collective demands, where they received a sympathetic response from a judiciary that fashioned new theories of liability and made injunctions readily available. For these reasons, it is useful to regard 1900 as marking the emergence of a new regime of industrial legality, which we call ‘industrial voluntarism’, in which state institutions played an increasingly important role in regulating industrial conflict. But although state institutions were directly involved in the resolution of industrial conflict more often after 1900, there was a great deal of continuity with the earlier regime. Neither elected representatives nor judges imposed a general legal obligation on employers to recognize trade unions, although towards the end of this period they did begin to encroach on employers’ freedom of contract when it came to dismissing workers for collective activity. For the most part, however, freedom of association for workers remained a legal privilege rather than a right enforced by the state. World War II marked a qualitative change in the regime of industrial legality. Legislation transformed freedom of association for the purpose of collective bargaining into an enforceable right. Collective agreements were imbued with legal status and a system of legally binding arbitration was put in place to resolve workplace disputes. In this legal regime, which we call ‘industrial pluralism’, trade unions were recognized as junior partners in key sectors of the economy as the state granted them a distinctive legal status. That status was, however, conditional upon their willingness to control unruly members. This book is a study of the transformation in the regime of industrial legality between 1900 and 1948. Thus, the regime of liberal voluntarism is outside our focus, although it is relevant to the extent that the regime of industrial voluntarism, which is central to this study,

4

L A BOUR BEF ORE THE LAW

was built upon its foundations. While the emergence of the regime of industrial pluralism is the culmination of our narrative, ours is not a tale of linear progress from dark beginnings to the triumph of industrial democracy and freedom of association. Rather, our story is a much more nuanced one in which coercive and accommodative elements operate synchronously, in a variety of combinations, and diachronically, as new laws do not neatly supersede older ones, but often supplement them, producing a complex legal regime. At the beginning of the twenty-first century, it is especially important to understand how these characteristics were built into the regime of industrial pluralism since we find ourselves in an era in which the postwar settlement, and the benefits it brought to many unionized workers, is unravelling, forcing a more balanced assessment of both its achievements and its limitations. The contradictions that have bedevilled the engagement between labour and the liberal state are, once again, coming to the fore, replaying, in an ever-changing key, the themes that dominate our historical exegesis. Before embarking on the historical narrative, we want to make explicit the theoretical foundation upon which it rests. Our focus is on legality. We argue that in liberal capitalist societies legality is a crucial, if not the primary, mode of regulating the contradictions that arise from capitalist production relations. Second, we attempt to operationalize our focus on legality through the general concept of a regime of industrial legality, which we argue is endemic to liberal capitalist societies, although the nature of that regime changes in relation to the social formation.

Legality: How Liberal States Rule The key contradictions the state is called upon to mediate arise from the oppositions of the atomistic competition of the capitalist economy and the necessity of solidarity for the reproduction of social life. Under capitalist social relations, which are characterized by the private ownership of the means of production, the vast majority of the population’s access to the means of subsistence is mediated through the wage. In the private realm of the economy, workers are bearers of a commodity, labour power, whose price is determined by supply and demand in the labour market. As a private matter, the employment relationship and wage bargain are of no concern to anyone other than the individual buyer and seller. But labour is a ‘fictitious’ commodity; it is neither produced as a commodity, nor is its production governed by an assessment of its realization on the market. Labour power is

I NTRO D U C T I O N

5

embodied in human beings who are born, cared for, and tended in a network of relations that, although in our political economy depend on the market for survival, operate outside of its direct discipline. And unlike other commodities, human beings have the capacity to act individually and collectively to resist the dull compulsion of supply and demand.3 One of the principal responses of workers to their subordination in capitalist labour markets has been mutuality. Workers have joined together, not just to advance their economic interests, but to build and enrich their lives and the lives of their families and communities through horizontal networks and organizations that provide social support and cultural expression. Of course, these are not merely responses to commodification; familial, cultural, and communal life predates capitalist social relations. But the protection and reconstruction of these solidarities assumes a new importance as an incomplete bulwark against the rising tide of commodification.4 While we can distinguish between various expressions and manifestations of mutuality, they need not be juxtaposed. Often the success of any one organization or struggle is closely connected to the development of other social bonds. But it is the mutuality of the trade union and workers’ collective action in support of its objectives that is the primary focus of this book, even though we recognize the importance of linking those struggles to the broader context of workingclass experience. Collective worker action in liberal democracies is also irretrievably enmeshed with law and the state, just as law and the state are inseparable from the constitution of the capitalist economy. One of the hallmarks of the liberal state is rule by law. Therefore, when workers engage directly with their employers to advance their interests they do so within a political and legal order. Syndicalists may aspire to eliminate the state’s direct involvement in industrial relations, but short of smashing the state, they must accomplish that result within a political and legal framework. But the state is not always viewed as a hostile terrain antithetical to the realization of worker self-organization. The democratic state can also offer an opportunity for workers to express their humanity and demand that they not be treated simply as commodities. Grounding its authority to govern in the idea of consent and avowing its commitment to liberty, equality, and the rule of law, the liberal state is impelled, however grudgingly, to respond to the demands of its propertyless subjects. Workers sought to use the political logic of the liberal state to limit their commodification in the capitalist economy, pressing their democratic demands as citizens for

6

L A BOUR BEF ORE THE LAW

inhibitions in the private realm of market relations. But in doing so, they had also to confront and contest the boundary between the realm of commodities, where individualism, contract, and property rule, and the realm of citizenship, where associational democracy governs.5 The turn to the liberal state, however, is not without its dangers for workers. After all, the slow emergence of the liberal state not only signalled the dominance of political democracy but the hegemony of private property as the means of organizing economic activity. The liberal state is the guarantor of individual property rights and provides owners with a system of law in which their claims are both vindicated and enforced. Market power can be translated into political and legal influence, not only through instrumental ties but through deep structural linkages and the pervasive ideological view that the interests of capital are coincident with the those of the polity as a whole. The liberal state must mediate the political demands of workers and employers, but it can never completely resolve the contradiction between democracy and private property. In this context, not only do workers often fail to achieve their objectives, especially when engaging with less democratically accountable state institutions, but their political and legal victories are often tempered by important concessions, both real and ideological.6 A recurring challenge for the liberal state is to institutionalize and contain the conflict within the labour market. A distinctive feature of liberal regimes is the extent to which legal mechanisms and values are invoked for this purpose. Yet, the modalities of legal intervention vary, as to its importance in relation to other ways of containing and regulating conflict. A study of labour history through the prism of law, we believe, illuminates this process by highlighting the role of institutions and, in particular, raising questions about their autonomy and the extent to which the well-being of the labour movement is tied to a supportive state. Moreover, by focusing on law we can examine the role of discourse, in particular legal discourse, in setting up categories that delimit the realm of legitimate claims, organize those claims in particular ways, and privilege some claims over others. Thus, our study aims to shed some light on two broader theoretical debates. The debate over the role of institutions and the state has deep roots in the labour movement and among labour historians. Within the labour movement, proponents of voluntarism and syndicalism have struggled with labourites and social democrats over the merits of collective bargaining and direct action, as opposed to electoral politics and direct state regulation.7 This debate also has deep resonance among labour historians and is overlaid by disagreements over the

I NTRO D U C T I O N

7

independent effects of institutions on class relations. The intensity of the debate is heightened by the fact that we are living in an era in which the fortunes of the labour movement and socialist and social democratic parties are declining and provoking a reassessment. Not surprisingly, no consensus has emerged. While increasing attention is paid to the significance of state and legal institutions in shaping the fortunes of the labour movement, there is wide disagreement over whether their effect has been supportive or repressive. We believe that labour history can benefit from careful study of the relations of labour, law, and the state. This does not mean, however, that we accept the strong claims made by neo-institutionalists about the autonomy of the state and the law.8 The liberal state’s commitment to maintaining capitalist economic relations places limits and exerts pressures on the institutionalization of labour relations. But this emphasis on economic structure does not imply that institutional arrangements are not important for explaining actual outcomes and subsequent developments. Any explanation of a complex historical process such as the institutionalization of a labour relations regime must operate at different levels of analysis and employ different levels of abstraction. While it is necessary to refer to the structural constraints to understand policy choices made by state agents, it is impossible to read institutional outcomes from economic relations. Workers and employers struggle to shape the institutional and legal environment in which their relations will be conducted and, once established, this environment, to varying degrees, has a life of its own that mediates the effect of future shifts in the balance of power between labour and capital. Our focus on legality as the modality for shaping relations between labour and capital also resonates with debates over discourse. Law in particular is often seen as an important site for the production of discourses, which in some readings are presumed to play an enormously powerful role in shaping human consciousness and behaviour. This ‘linguistic’ turn challenges the materialist and classbased analyses that were common theoretical premises of much of the ‘old’ new labour history.9 The discursive power of law merits careful examination, but we find it useful both to distinguish between discourse and ideology and to continue to emphasize the directly coercive features of a legal regime that distinguish law from other discourses. Under liberal capitalism the state has the monopoly on the use of legitimate force and law legitimates its use. While both discourse and ideology refer to the idea that people’s participation in and understanding of social

8

L A BOUR BEF ORE THE LAW

life are mediated by communicative practices, discourse refers more to the internal features of those practices and the processes through which they are produced, while ideology is primarily concerned with its external effects. Are discursive practices incorporated into lived experience so as to help perpetuate relations of domination and subordination by naturalizing and normalizing them? From this perspective, law is a particular form of discourse produced through highly stylized, internally rational, and normative arguments that follow rules distinct from those governing ordinary conversation. It is clear that legal discourse may have some material effects insofar as law’s words are implemented and enforced by agents of the state, but the question here is to what extent, under what circumstances, and on whom does legal discourse have ideological effects?10 The last point requires some explanation. Legal discourse is directed at a number of audiences, and it is important to consider whether or not it has different effects on different segments of society.11 In the context of our study, we need to consider the ideological effects of law on particular groups of workers (for example, skilled/unskilled, ‘foreign’ or of British origin), on employers, on state officials, and on other members of the public. Moreover, trying to assess ideological effects raises a host of difficult evidentiary and interpretive issues. How do we distinguish between what Terry Eagleton has characterized as ‘normative’ and ‘pragmatic’ acceptance by subaltern groups of a system of rules that characteristically operates to their disadvantage?12 We have discovered no simple answers to these questions, but our study suggests that legal discourse has its most powerful ideological effect when it resonates with other discourses. The challenge for the liberal state is how to give a unitary and unifying expression to the experience of groups within a society whose reality is systematically unequal since it is structured along lines of class, gender, ethnicity, race, age, religion, occupation, and locality. To meet it, state agencies are simultaneously engaged in marshalling and organizing both centripetal and centrifugal discourses and forces.13 At one extreme, the state is involved in a totalizing project, identifying people as formally equal before the law, stripped of their class position and any other characteristic that might distinguish them from other legal subjects. On other occasions, mass loyalty to the social, political, and economic order was to be achieved at the expense of an ‘other’. This approach is epitomized by the nationalist project, which claims some people’s primary social identification to a ‘nation’ to which the ‘alien’ or ‘foreigner’ cannot belong by reason of place of birth or ‘race’. In Canada, for example, not only were entitlements and

I NTRO D U C T I O N

9

protections provided by ‘British justice’ to British subjects often denied to ‘dangerous foreigners’ who engaged in collective activity, but Canadian judges were wont to single out these foreigners for particularly harsh treatment to teach them respect for ‘British’ law.14 In still other contexts, state apparatuses distinguish and individualize people in even more definite and specific ways, identifying them as workers, consumers, parents, and soldiers for the purpose of granting different entitlements and imposing different restrictions. These totalizing and individualizing projects and processes involve forms of regulation and modes of discipline through which both capitalist social relations are organized and individuals come to identify themselves. But discourse and the construction of identities are contested and their production is not the exclusive domain of privileged speakers and state institutions. Just as workers resist their commodification, their consciousness cannot be moulded and shaped conveniently so that they automatically accept their own subordination. The practice of social solidarity supports its own discourses and identifications, which in turn reinforce social solidarity, even if the language used often is drawn from the vocabulary preferred by dominant groups and the identifications made emulate existing social divisions. The assertion of ‘rights’ and claims to British justice can be a powerful mobilizing force, as can claims to masculinity. Yet just as the engagement with the state can be double-edged, so, too, are gendered and racialized identities and the use of discourses, particularly legal ones, that historically have been used to legitimate and render invisible relations of domination.15 Ultimately, the debates about the role of the state institutions and legal discourses in shaping class relationships cannot be resolved theoretically. Theory can help us to identify key concepts and central contradictions, but only historical study can capture the complex dynamics of institutionalizing class relations in law.

Regimes of Industrial Legality In an attempt to capture this complexity, we have adopted the construct of a regime of industrial legality as our central heuristic device. We are aware that the phrase ‘industrial legality’ has been used to describe a specific set of institutional and legal arrangements that emerged at the end of World War II, which are characterized by legally binding contracts between bureaucratic trade unions, certified by the state to represent administratively defined bargaining units.16 It has also been deployed more generally to describe the institutional

10

L ABOUR BEF ORE THE LAW

arrangements and goals of bureaucratic trade unions that exercised a great deal of control over rank-and-file action to maintain the sanctity of collective agreements.17 We believe, however, it is useful to expand this concept even further to refer to the inevitable attempts by liberal states to institutionalize norms and mechanisms for resolving the conflict that is endemic to capitalist relations of production. While confining the term ‘industrial legality’ to the regime constructed at the end of World War II has the advantage of emphasizing the extent to which trade unions called upon the state and law to underwrite their status in the workplace, narrowing their goals in the process, it obscures the extent to which law in a liberal capitalist society constitutes the framework, both normative and instrumental, in which power struggles are fought out in the first place. We begin from the premise that a liberal state must develop a means of institutionalizing conflict between workers and employers, but that any particular regime is subject to both change and contestation. Moreover, this regime, while simultaneously moral and economic, will predominantly be articulated through a variety of legal institutions and discourses. This is due to the nature of the liberal state, which seeks to justify and legitimatize its actions through a framework of legality. A regime of industrial legality describes a set of institutions that define and enforce a constellation of rights, which in turn govern and mediate relations between workers and employers. Rights in this sense are always political and social in that they are claims recognized by the state that define relations between people.18 For example, when an employer asserts a right of ownership, it is not a claim about the owner’s relation to a thing, but rather a claim about the owner’s relations with other people. The private property owner’s right to exclude necessarily implies that everyone else is under a correlative duty not to trespass. Not surprisingly, then, the regime of industrial legality is a contested terrain since a claim by employers entails legal consequences for workers and vice versa. Moreover, although it is typical to speak of rights generically, it is often useful to delineate more precisely different kinds of rights claims and the different legal relations they entail. Of particular significance in this context is the difference between a legal right and a legal privilege. A legal right, as used in the example of trespass, entails a correlative duty. A person who enjoys a legal right can call upon the state to stop another person from interfering with its enjoyment, and that person may be punished for the breach of the correlative duty. Rights in this sense are powerful because the state stands

I NTROD U C T I O N

11

behind them. By comparison, legal privileges are much weaker; the activity protected by a privilege cannot be stopped by the state, but there is also no state-backed protection against interference. Private property is the defining relation of capitalist social formations, but the concept of private property contains a contradiction that could be resolved by its negation. Private property signifies both an area of private right, where individual desire, caprice, and choice reigns, and a set of claims that depend on state recognition and enforcement.19 This contradiction comes to the fore in the liberal democratic state, where the majority of workers enjoy citizenship rights that could be exercised to limit the prerogatives of capitalist property owners. Historically, this challenge has been met by separating the sphere of public authority from that of civil society. Private property, the pre-eminent realm of voluntarism and civil society, demarcates the economic from the political and the limits of public authority. This is legitimated by the formal equality of subjects in civil society, which equates an individual’s ownership of his or her capacity to labour with ownership of things. Law obscures the social relations embodied in rights, treating each individual as equal before and under it, despite profound inequalities in the human condition.20 But property rights are not abstract and formal, and inequality and conflict within the civil sphere may generate movements to breach the separation between public authority and civil society. For example, a collision between democratic demands for social justice and economic fairness and employer counterclaims about the prerogatives of private ownership may not be resolved without the intervention of public authority in the civil sphere. But within capitalist states, numerous safeguards have been constructed to protect private property, and these are reinforced by powerful ideologies that extol the virtues of the private over the public. The legal system, while not immune from these conflicts, is a site that historically has played an important instrumental and ideological role in protecting the prerogatives of property against workers’ claims, whether they are made politically or through collective action in civil society. Even here, however, the precise content of property rights is the product of past struggles and is liable to be altered by future conflicts, although the core rights of private ownership are rarely at risk.21 Freedom of contract, the other mainstay of the legal infrastructure of capitalist market economies, is linked to private property insofar as one of the core rights of owners is the power of alienation. The freedom to dispose of one’s property, whether it be land or labour power, is realized in the marketplace where goods and services are allocated

12

L ABOUR BEF ORE THE LAW

according to the price mechanism, regardless of whether the contracting parties are individuals or collectivities (e.g., corporations and unions). As with property, though, markets are not only realms of ‘private’ and ‘voluntary’ activity, but are also publicly constructed institutions and, therefore, liable to be regulated for purposes other than the promotion of efficient exchange. The commodification of labour power in liberal democratic societies characterized by radical inequality creates conditions under which workers, who cannot be separated from their labour power, may resist their commodification and pressure the state to substitute non-market mechanisms for determining at least some employment conditions. Employment law regimes clearly contain decommodified elements, but as with property rights in general, the market mechanism reigns supreme. Although the form of voluntarism varies considerably, it is a unifying characteristic of all capitalist regimes of industrial legality. In addition to core property and contract rights, regimes of industrial legality also protected certain notions of public order. Prohibitions on the individual use of violence, threats, and intimidation were accompanied by laws governing people acting collectively. The law of conspiracy dealt with combinations pursuing unlawful objects or using unlawful means, and continued to be applied to trade union activity even after it was conceded that in was not per se unlawful for workers to combine for the purpose of improving the conditions of their employment. While civil conspiracy law in trade union disputes was used to protect employers’ economic rights, on occasion criminal charges were laid when trade unions used their economic power for political purposes. The concern to limit the purposes of workers’ collective action so that they did not threaten the economic and political order has been a core feature of capitalist regimes of industrial legality, although the precise limits on trade union activity and the ways and means used to achieve this result have varied. Control of group behaviour, especially in public places, has also been a persistent theme in these regimes. Prohibitions against riotous or disorderly conduct, persistent following, watching and besetting, causing a disturbance, disturbing the peace, mischief, unlawful assembly, obstructing police, and vagrancy were all used to maintain public order in the context of strike-related activity by workers. However, differences in the balance of economic power and political influence between organized labour and capital may alter the constellation of legal rights or shape the way state institutions define, interpret, or apply the law. These power differences in turn are conditioned by a variety of interrelated factors, including the particular political economy of a

I NTROD U C T I O N

13

region, the organization of political parties and their relative electoral strength, the type and strength of trade union organization, and the power of dominant groups to maintain ideological hegemony. Once we understand that legal relations between employers and workers are defined through a myriad of rights, privileges, powers, and immunities, and their correlative duties, liabilities, and disabilities, it is easier to grasp the complexity of these arrangements and to appreciate their potential diversity. Conflict over the regime of legality can be fought on many fronts, sometimes in isolation, sometimes in combination, and the outcome of conflict may vary from jurisdiction to jurisdiction. Moreover, the rights recognized by the regime are neither static nor completely defined. New disputes may produce changes in the legal relations between workers and employers. As well, law is often indeterminate or confers discretionary powers, leaving officials and decision-makers ample room to choose to apply the law to the circumstances as they see fit. As a result, we must also attend to the institutional characteristics of a regime of industrial legality. Presupposed in our definition of rights is the existence of a state structure that both defines and enforces (or not) legal relations. But this structure is not monolithic, and authority is divided among different apparatuses. Thus, legal pluralism is a distinctive feature of a liberal legal system. The respective roles of the judicial, legislative, and administrative branches of government in regimes of industrial legality have differed substantially. Indeed, at specific moments the allocation of authority within the regime may become a focus of conflict because of beliefs that specific institutional allocations of power are more amenable to certain interests than others. A central theme of our narrative is the shifting of roles and responsibilities among different state actors. Another dimension of regime institutionalization, particularly significant for Canada, is the distribution of powers among national, provincial, and local governments. While the constitution delineates the boundaries between federal and provincial powers, its language is subject to interpretation by the courts and leaves ample room for the federal government to expand its authority in a variety of circumstances—war being the most obvious example. Moreover, labour and capital have held shifting and often conflicting views of the optimal division of powers. For these reasons, the ebb and flow of federal activity in the field of labour relations is an important theme in the development of regimes of industrial legality.22 We also cannot ignore the role of local authorities since most labour conflicts were handled locally, even if this was done within

14

L ABOUR BEF ORE THE LAW

the framework of rules and policies articulated nationally or provincially. Local officials were almost always in a position to affect significantly the course of a strike. Not only could they informally mediate disputes, but local officials were vested with primary law enforcement power, allowing them to determine what level of police protection would be offered and for what purposes. The extent to which provincial or federal officials left these matters to local officials varied, again depending on a number of factors including the perceived impact of the labour disruption on the economy. Given this complicated geography of state power, it could not be assumed that a high level of co-ordination would be achieved. We have already noted the potential for conflict between local and provincial or national authorities over the deployment of coercive powers, but the problem was not limited to friction between levels of government. There was also disagreement between and within various branches of government. For example, legislative objectives could be subverted by judicial interpretation, a judge’s instructions to a jury could be ignored if they did not accord with the jurors’ sense of justice, and officials of a provincial labour department promoting collective bargaining could be subverted by a premier mobilizing coercion to defeat unionization. Finally, the construction of regimes of industrial legality was dialectically related to the process of state-building in Canada. For example, the development of policing in Canada cannot be fully understood without looking at responses to the problem of maintaining order (of a particular sort) during industrial conflict, just as the course and outcome of strikes cannot be understood without considering the development of police forces and their role. Similarly, the growth of the administrative apparatus of the state was partially a response to the demands labour made for greater regulation of employment, while the existence of a corps of labour officials influenced the state’s capacity to intervene in labour conflict and the course of the subsequent development of labour policy. The elements of continuity, change, and variability mean that any attempt categorically to distinguish between regimes of industrial legality inevitably will be somewhat arbitrary. Nevertheless, we have found it useful to do so. Indeed, the book is organized around the heuristic of three regimes and the transitions between them: liberal voluntarism (1850–1900); industrial voluntarism (1900–48); and industrial pluralism (1948–present). We believe this is defensible despite the fluidity of particular regimes because, at certain points in time, changes in the constellation of rights, the modalities of state

I NTROD U C T I O N

15

intervention, and legal discourse combined to reach a level of significance that warrant us speaking of a regime change. The utility of organizing our story in this way will have to be judged at the end, but before the reader embarks on this endeavour we would like to identify the limitations of our study. What we offer is a history of that aspect of labour and employment law regimes designed to institutionalize conflict between workers and employers that is expressed collectively. Thus, we have focused on strike-related and trade union activity. Several important consequences flow from this decision. Given our time period and the prevailing sexual division of labour, the overwhelming majority of workers who engaged in collective action were men. Throughout the narrative we have tried to identify those occasions when women strikers or unionists were subject to treatment that was explicitly gendered; however, we make no claim to provide a systematic account of how gender relations shaped either the contours of class conflict or its institutionalization. This limitation is related to the omission from our story of a detailed analysis of legal devices that directly shaped the rights, duties, privileges, and freedoms of the employment relationship, such as factories acts, minimum-wage statutes, and workers’ compensation schemes. In that respect, our portrait of the transformation in the regimes of industrial legality is incomplete, since direct statutory standards are related to and have an impact on the institutionalization of mechanisms designed to deal with the overt signs of labour conflict. Moreover, these schemes often are explicitly gendered. And finally, our focus on legal institutions inevitably tends to obscure the texture of daily life against which class relations are played. But despite these limitations, we have sought to present the historical context in which the regimes of industrial legality were constructed in Canada by providing generous illustrations of the variety of forms of and responses to workers’ collective action.

PART I

The Emergence of Industrial Voluntarism

2

Courts and Conciliation: The Norms of Responsible Unionism, 1900–1906 By the turn of the century, the transition from competitive to monopoly capitalism had profoundly altered class relations. The economy was expanding dramatically, but prosperity was not enjoyed equally. Between 1900 and the outbreak of World War I, productivity and prices soared, but wages lagged behind. Workers both wanted to share in the economic prosperity and struggled for more control over their working lives. Class conflict increased dramatically at the beginning of the Second Industrial Revolution; between 1899 and 1903 there were 745 strikes involving just over 120,000 workers.1 At the same time, the working class became more deeply fragmented along linguistic, gender, ethnic, and racial lines. Skill distinctions reinforced the hierarchy in the labour market. Women’s participation in the paid labour force increased, but they were confined to certain industries and occupations, such as textiles and garments, food processing and serving, office work, and telephone operators. Generally, the sexual division of labour both between and within the household and workplace was deeply entrenched, with the result that women were less likely than men to be employed in contexts where strikes were an effective strategy to challenge employers’ prerogatives. Employers both promoted and exploited ethnic and racial divisions in the working class. In British Columbia, a mine manager assured a Toronto capitalist of the need for ‘a mixture of races . . . the 16

COURTS AND CONCI L I AT I O N

17

strength of an employer, and the weakness of the union’.2 The skilled crafts were composed almost exclusively of workers of Anglo-Saxon descent and their unions adopted policies of ethnic and racial exclusion and called on the government to restrict immigration. The vast majority of unskilled workers, especially those who were not of Anglo-Saxon origin, were paid much less than their skilled counterparts and suffered dangerous and unhealthy working conditions. The new industrial unions that represented unskilled workers ultimately rejected the policy of ethnic exclusion and began actively to woo immigrant workers who were not of British stock. But while class solidarity occasionally overcame ethnic and gender divisions, it rarely surmounted racial distinctions. Scientific management, which concentrated on reducing labour costs by changing the labour process to permit the greater exploitation of labour power, had a detrimental impact on skilled workers in manufacturing. Mechanization enabled employers to substitute semiskilled and unskilled workers for those organized on a craft basis. Between 1899 and 1903, craft workers’ institutional strength was attacked by employers keen to establish the open shop. Thus, the material and ideological bases for mutuality between skilled workers and employers were undermined. Although the struggles of skilled workers were at the forefront of the first strike wave of the Second Industrial Revolution, semi-skilled and unskilled workers also engaged in industrial action. Industrial disputes in the resource industries and in the building of public infrastructure frequently took the form of mass unrest. Railway construction workers, coal and hardrock miners, and workers in lumber camps and sawmills often protested their poor wages, dangerous working conditions, and unsanitary habitation by engaging in strikes. Mass industrial unrest also took place in Canadian cities, which grew at an astonishing rate during the first decade and a half of the century. Strikes occurred in textile mills, garment factories, and steel and electrical works, as well as on the docks, railroads, street railways, and larger construction projects. Employers and local state officials responded to workers’ collective action by invoking the existing legal infrastructure of coercion, but it was neither especially strong nor monolithic. The federal government laid the foundation for state coercion through the criminal law, which defined what activity was prohibited and subject to sanction, and its aid to civil power legislation, which provided for troops and mounted police to be called upon to enforce social order. But it did not control the application and interpretation of the criminal law,

18

L ABOUR BEF ORE THE LAW

which was a matter for provincial and local officials in the first instance and the task of the courts in the second. Nor did the federal authorities control the deployment of force in a particular dispute, since that decision rested with local officials. Thus, there was a complex division of state coercive powers. What was new about the Second Industrial Revolution was that employers increasingly turned to the courts to vindicate and enforce their private rights by obtaining judicial orders against trade unions, their members, and their supporters. During the first strike wave, injunctions were used primarily against skilled craft workers. Criminal law restrictions against picketing behaviour were invoked against both skilled and unskilled workers. When strikes took the form of mass unrest involving unskilled workers, troops were deployed. But while legal and state repression was used to restore labour peace on terms favourable to the employer, it smacked of class bias, undermining the appearance of neutrality essential to the liberal state. Moreover, many trade unions favoured compulsory arbitration and called on the federal government for assistance. The Laurier government responded to these pressures by developing techniques to accommodate and mediate class conflict rather than invoking outright repression. It institutionalized conciliation mechanisms that could be invoked by the parties to resolve conflict. This was the second new element in the emerging regime of industrial legality.

Forging Responsible Unions in the Courts At the turn of the century, the courts played an increasingly prominent role in delineating the contours of industrial legality. In the past, their role had been confined to interpreting and applying the criminal law and, occasionally, at the magisterial level, to rubber-stamping a request for the militia to be deployed. The courts’ application of the criminal law continued to be a major arena of struggle over the legality of strike tactics, but it was employers’ increased reliance on the judiciary’s civil jurisdiction that was distinctive. In the United States, the injunction was a powerful tool that employers could use both to restrict strike-related activity and to attack trade unions. But while the tactical advantages of this civil law strategy were clearly demonstrated south of the border, the legal authority for this approach came from England. In the early 1890s, English judges began to fashion new economic torts designed to protect employers against the kinds of harm that strikes aimed to cause. Interference with existing contracts or with the formation of future

COURTS AND CONCI L I AT I O N

19

contracts was held to be an actionable wrong without any defence or justification. Picketing to persuade non-striking workers or potential recruits not to take up employment, even when peaceful, was also found to be tortious. The effect of these judgements was to render wrongful almost any communication between strikers and current or potential strikebreakers. Moreover, they firmly established the injunction as an effective device for having such activities stopped quickly. Interlocutory injunctions could be issued whenever a prima facie case of illegality was made out and grievous harm to the employer was threatened. Interim injunctions could be issued whenever the balance of convenience favoured them, and, for most judges, the balance clearly tilted in favour of allowing the employer to continue operations with as little hindrance as possible.3 Canadian employers invoked English precedents in order to limit the impact of strikes. On at least 19 occasions between 1900 and 1914, courts issued labour injunctions to prevent strike-related activities (see Table 1). The majority of the injunctions were directed against picket-line behaviour, although some were obtained to prohibit other traditional forms of strike-related activity, such as consumer boycotts and sympathy action by other workers. Eleven were obtained by employers against skilled workers represented by craft unions in southern Ontario. Toronto was the focal point of this form of legal action and metal workers its first target. Just over half of the injunctions obtained were issued during the first strike wave, and in only one instance, that of the Rossland copper and gold miners, did the strike not involve skilled workers represented by craft unions in southern Ontario. There was another flurry of these judicial orders in 1905 and 1906, when recourse to such actions shifted west. Between 1907 and the outbreak of World War I, only four labour injunctions were issued, but three of them were sought by mine operators. In these disputes injunctions supplemented traditional forms of statebacked coercion. The use of injunctions to attack traditional strike tactics was not simply an ad hoc response by individual employers. Rather, it was part of a concerted drive by employer associations to maintain the open shop. Faced with increasing organization and cross-craft solidarity by unions, employers responded in kind. Canadian employers established city-wide organizations to fight the closed shop in Toronto, Kingston, Berlin, and Winnipeg and they sought assistance from continental trade associations in their campaigns against unions. The Canadian Manufacturers’ Association (CMA) kept its members across the country apprised of judicial innovations that assisted

Employer

Union

1900, Toronto, Ont. 1900, Brantford, Ont. 1901, Rossland, BC 1902, Toronto, Ont. 1902, Toronto, Ont. 1902, Berlin, Ont. 1902, London, Ont. 1903, Toronto, Ont. 1903, Toronto, Ont. 1903, Berlin, Ont. 1905, Stratford, Ont. 1905, Toronto, Ont. 1906, Winnipeg, Man. 1906, Port Arthur, Ont. 1906, Winnipeg, Man. 1907, Cobalt, Ont. 1909, Springhill, NS 1909, Glace Bay, NS 1913, Winnipeg, Man.

Massey-Harris Massey-Harris LeRoi Mining Co. et al. Gurney Foundry Metallic Roofing Krug Furniture Grand Opera Dixon Carriage Works Canada Foundry Brauch (contractor) Grand Trunk Railway Hough Lithographing Vulcan Iron Works Canada Foundry Master Plumbers Silver Mines Cumberland Railway Dominion Coal Morley & Sons et al.

Iron Moulders Union Iron Moulders Union Western Federation of Miners Iron Moulders Union et al. Amalgamated Sheet Metal Workers Union Amalgamated Woodworkers’ Int’l Union American Federation of Musicians Carriage Makers’ Union Iron Moulders Union Bricklayers’ and Masons’ Union Int’l Assoc. of Machinists et al. Lithographers’ Union Int’l Assoc. of Machinists et al. Int’l Iron Workers Union Journeymen Plumbers Union et al. Western Federation of Miners United Mineworkers of America United Mineworkers of America Painters and Decorators Union

SOURCE:

Labour Gazette.

L ABOUR BEF ORE THE LAW

Year, City, Province

20

Table 1 Labour Injunctions in Canada, 1900–1914

COURTS AND CONCI L I AT I O N

21

employers via running commentaries in the pages of its official publication, Industrial Canada. The first volley of the new legal assault targeted the practices of skilled craft workers who formed the small, but powerful, élite in the metal works scattered across southern Ontario. The International Moulders Union attempted to reassert craft control, which had been weakened by the union’s defeats in strikes and lockouts during the 1890s at the hands of Gurney and Massey, two large and aggressive foundries located in Toronto. The metal trades had achieved a high level of solidarity, and sympathy strikes became common. When a wave of strikes swept through the metal industry, employers sought to reshape the terrain on which such conflicts would be conducted. Instead of invoking the criminal law, the traditional response to such strike tactics, Massey adopted a different legal strategy, one used only one other time in Canada, 17 years earlier, and then forgotten. Relying on English precedents, it commenced civil actions in superior courts against named workers and the local unions involved, seeking injunctions and damages. It sought to extend the prohibition against molestation and intimidation to any attempt, verbal or otherwise, to dissuade other workers from continuing or taking up employment. Moreover, by bringing ex parte applications for injunctions, Massey sought to stop this activity without giving the union or the strikers an opportunity to respond to its allegations.4 This legal process was an expeditious one that worked in the employer’s favour. Solely on the basis of the uncontested affidavits filed by Massey, the court granted broadly worded injunctions the same day the action was commenced. These injunctions, which prohibited the union or its members from picketing, continued while the interlocutory legal wrangling on the actions dragged on. Subsequently, Massey used the legal process to explore the inner workings of the trade union and to harass trade union officers. Not once in the 14 months over which the actions unfolded was a jury involved. Two important legal questions were raised by Massey’s actions: the precise limits on the privileges enjoyed by strikers to persuade other workers to refuse to work for a struck employer and the legal status of trade unions. The first went to the heart of the traditional strike tactics used by skilled workers. While intimidation and molestation were clearly prohibited by the criminal law, it was unclear what actions violated these prohibitions and whether peaceful picketing was permitted. The bench was divided on this issue and no final decision settling the matter was issued. The second question essentially concerned whether a trade union had a legal status distinct from that

22

L ABOUR BEF ORE THE LAW

of its members so that it could be a party to a legal proceeding in its own name. The liability of a trade union in damages turned on this issue. Judgements against trade union officers in their personal capacity would hardly be worth pursuing since monetary damages would not be recoverable in most cases. If, however, trade unions were seen as ‘legal persons’ and trade union funds could be accessed through the courts, then not only could damages be recovered but employers could attack the institutional, organizational, and financial structure of their opponents. At the time of the Massey actions, this question had not been settled, although the predominant understanding was that unions could not be sued directly. However, the judge hearing the injunction opined that the union ‘has some legal existence’ so that it could be made a party to the case. But, again, this legal question was not resolved in the Massey litigation since the action was settled out of court. Although Massey’s actions did not resolve the thorny jurisprudential questions, they firmly established that injunctions were available to restrict the traditional strike-related tactics used by skilled workers. This new legal technique was honed in subsequent court proceedings and was used to place trade unions on the defensive. On at least six separate occasions during the first strike wave, employers in southern Ontario, including two foundries, obtained injunctions limiting the strike tactics of skilled workers (see Table 1). While injunctions were invoked primarily by employers against skilled workers and craft unions during the first strike wave, their use was not limited to this context. Massey may have been the first Canadian employer to adopt English legal innovations to reduce the impact of a strike, but it was quickly followed by mining companies located in the Kootenay region of British Columbia. These companies used the injunction as part of a concerted strategy, which included the use of private detectives and spies, the recruitment of special constables, and the aggressive use of the criminal law, to break the Western Federation of Miners (WFM). In 1901, one of the three mining companies owned by the Goodernam syndicate obtained a wide-ranging injunction prohibiting strikers from attending at railway stations in order to persuade potential replacement workers not to break the strike, while the syndicate’s other two mines closed down for the duration of the strike and brought civil actions against the union for damages.5 The same legal issues were raised in the actions launched in both the Massey and Rossland strikes; however, the mining companies proved to be more determined than the foundry in pursuing legal redress. Not content with simply defeating the strike, they went after

COURTS AND CONCI L I AT I O N

23

their pound of flesh in the courts. Union officials in Rossland were subpoenaed and ordered to produce their records in court and when they refused to comply, contempt proceedings and imprisonment followed. The mining companies fought to ensure that the trial of the civil action was heard in Victoria, well away from the communities where the strikes occurred and the miners and their families lived. Ultimately, a full sitting of the province’s Superior Court was persuaded that Rossland as a trial venue was ‘unfit on account of the prejudices of a very large proportion of the population there’. When the first of the civil actions for damages against the WFM finally went to trial in 1904, the jury found against the union and assessed $12,500 in damages. The following year, the second mine settled its action when the WFM agreed to pay it $1,000. The mining companies continued to resort to the courts to force the union to pay up, and eventually the miners’ hall was lost and the local union was forced into receivership. The legal actions and decisions emanating from the Rossland strike attracted the attention of organized labour in British Columbia. Unions were particularly concerned to defend themselves against the threat of injunction and damage actions. The 1901 decision by the House of Lords in Taff Vale made civil actions a more potent threat since this decision permitted employers to bring representative actions against unions in order to attach their funds.6 Damage actions lodged against trade unions threatened strike funds, which enabled striking workers and their families to survive. Succoured by their success in obtaining legislation limiting the workday in the mines to eight hours, miners turned to provincial politicians to obtain protection against judicial innovations. As the mining companies’ actions were winding their way through the courts, the provincial member for Rossland, Smith Curtis, introduced a bill in 1902 entitled ‘the Trade Unions Protection Act’. The bill proposed to protect trade unions from injunctions and their funds from liability in damages for ‘any threat or act of intimidation or conspiracy’ of their officers or members and to preserve a sphere of communicative action by trade unions from legal restriction. Since the bill declared that it was to have retrospective effect, if enacted, it would have provided the WFM with a method of limiting its liability for damages arising out of the Rossland strike. The Attorney General focused his attack on this aspect of the legislation, charging Curtis with acting for the WFM, and the bill was defeated.7 The legislative machinations continued as a second bill was introduced soon after the demise of the first. This one was less drastic than the former, since it was designed simply to relieve unions of liability

24

L ABOUR BEF ORE THE LAW

only for the unauthorized actions of their agents. It received second reading over the Attorney General’s objections. In committee it was amended to incorporate verbatim two of the provisions of Curtis’s defeated bill and it was eventually enacted in this amended form in the dying days of the session. Essentially, the legislation limited trade union liability to those actions it duly authorized and protected unions, their officers, and members from injunction and liability in damages for either engaging in peaceful communication with potential strikebreakers or publicizing the existence of a dispute. If respected by the courts, the legislation would make it very difficult, if not impossible, for employers to enjoin peaceful picketing and consumer boycotts. But this legislative victory had little immediate effect. The defendants in the Rossland actions claimed the new benefits of the Trade Unions Act, but in the trial of the first action the judge did not give the jury any instructions on this matter. The WFM was held to be liable for damages resulting from the unlawful actions of its officers and members. Despite its unpropitious start, the British Columbia Act was heralded by the labour press as rendering the Taff Vale decision powerless as far as unions were concerned. However, this claim was not soon tested in court, since after the Rossland strike there is no evidence that British Columbia employers sought either to enjoin trade unions or to make them liable for the actions of their members. Whether the legislation was the cause of this is simply not known. But whatever its legal effect, the British Columbia Act served as a rallying point for trade unions to demand legislative restrictions on judicial incursions against trade unions. In Ontario, the Trades and Labor Congress (TLC) unsuccessfully pressed the province’s government for similar legislative protection.8 On at least six occasions between 1902 and 1906, employers sought to rely on English precedents to establish that attempts by striking workers and their unions to persuade other employees or potential recruits not to work for struck employers were inducements of breach of contract.9 Once they established this unlawful act, then any collective action by union members in this regard constituted a conspiracy to injure that was not justifiable. Each of these cases involved employers who were being struck by craft unions, and the issue of the closed shop was never far from the surface. The legal actions were invariably initiated by the employers to facilitate the use of replacement workers by prohibiting picketing and in each case the application for injunction was successful. In several of the cases, moreover, damages were awarded against the trade union for the unlawful actions of its members.10

COURTS AND CONCI L I AT I O N

25

The law of injunctions developed in tandem with the interpretation of the Criminal Code prohibitions on watching and besetting to restrict peaceful picketing. Not only could the Criminal Code be invoked to punish individual strikers and trade union officials, but employers could also obtain injunctions on the basis that the picketers were engaged in criminal conduct. However, for this strategy to be effective judges had to interpret and apply the criminal law more stringently. At issue was the scope of watching and besetting, since in the 1892 revisions to the Criminal Code the specific exclusion of peaceful picketing from the watching and besetting provisions had been dropped. In Winnipeg, the combination of injunctions and the criminal law proved to be a powerful weapon for ironworks determined to maintain open shops in the face of concerted action by machinists, moulders, and blacksmiths. The fight centred on Vulcan Iron Works, the most intransigent of the employers. Adopting the tactics of its southern Ontario counterparts, Vulcan applied for an injunction to prohibit the metals unions and their members from picketing. In 1906, Justice Richards issued the first injunction ever used in a Winnipeg strike, ordering the local lodges and their members to stop besetting and watching any and all persons employed by, or seeking employment with, Vulcan.11 Almost three years after the strike-cum-lockout began, the parties had their day in court, with Justice Mathers presiding. In considering the legality of the picketing, he was careful to distinguish the goal of the workers’ action, which was lawful, from the tactics they employed. Despite the fact that there was scant evidence of violence or intimidation, Mathers was categorical that the picketing constituted an unlawful act. The omission of the proviso excluding peaceful picketing from the 1892 revisions to the watching and besetting section of the Criminal Code turned out to be decisive. Characterizing the peaceful picketing as a common-law nuisance, Mathers made the injunction perpetual and awarded Vulcan $500 damages. And, to add insult to injury, judgement was awarded against several of the internationals’ lodges and their officers on the basis that they organized and actively promoted the picketing. According to Mathers, ‘the persuasion, to be legal, must be such as to leave it to the absolutely free and untrammeled will of the workman as to whether or not he will terminate his employment.’ Against this, he contrasted the union’s jurisdiction over its members, ‘with all its coercive machinery and power’, to penalize for a refusal to obey its mandate. As a final fillip to the unions, Mathers found that Vulcan had not made its case that the

26

L ABOUR BEF ORE THE LAW

unions had induced strikebreakers who had been procured by the Thiel Detective Service in Toronto to breach their contracts with it. While both parties appealed Mathers’s decision to the Manitoba Court of Appeal, neither was successful. In 1913, seven years after the strike began, the Iron Moulders Union agreed to pay Vulcan $5,050 in costs and the locals paid $3,860 for their own legal representation.12 Employers’ attempts to use the criminal law prohibitions against watching and besetting as the legal wrong to support an injunction were accepted by the courts. The line between civil and criminal liability in picketing cases was not very clear. However, when criminal and civil actions were brought against striking machinists by the Grand Trunk Railway in Stratford, the union movement considered that line to have been overstepped. What irked the TLC in this case was the fact that the same lawyer was permitted to act as Crown prosecutor in the criminal trials and as the company’s solicitor in the civil ones. This was not the first time that this had occurred. During the Rossland strike, the mining companies’ lawyer in the civil actions also acted as Crown prosecutor in the criminal charges against the strikers. In such cases it was impossible not to doubt the impartiality of justice as administered by the state. The TLC convention called for a change in the Ontario law to put an end to such conflicts of interest, but none was immediately forthcoming.13 This aggressive resort by employers to both the criminal law and injunctions to restrict picketing brought courts into the centre of industrial conflict. Workers and their unions saw that their privileges to strike and engage in tactics of persuasion were being eroded by a judiciary bent on preserving a slanted version of public order and protecting employers’ rights of property and contract. To them, their precarious legislative victories were being attacked by judicial decree. In the criminal law, judicial bias could be neutralized by permitting striking workers to be judged by a jury composed by some of their peers and by legislatively limiting some of their discretion. However, it was more difficult to fetter in the civil sphere, where state coercion was less direct and judges ruled the day. The criminal law restrictions on picketing were contested first in the courtroom. Charges were frequently tried by magistrates and lower court judges who, aside from their personal sympathies, were concerned to put an immediate end to ongoing disorder and violence, which was almost always occasioned by the use of strikebreakers. This resulted in convictions, often with little concern for legal niceties. J.G. O’Donoghue, the solicitor for the TLC, complained to a County Court judge about the Toronto Police Court: ‘I would not let

COURTS AND CONCI L I AT I O N

27

a man take a charge over there at all. The strikers get the short end of the stick all of the time.’14 This comment was likely directed at Magistrate Denison, the scion of the Toronto Police Court. He found the most minor forms of disorderly conduct, including following, name-calling, and cursing strikebreakers, to be criminal watching and besetting. He took particular objection to the term ‘scab’, convicting two garment workers, a cabman, a foundry worker, and two cloak makers of the criminal offence of intimidation for using it. He was also of the view that the accused had no right to elect trial by jury and that a magistrate could decide to proceed summarily. Eliminating trial by jury not only allowed employers to get criminal sanctions imposed quickly, but it also increased the chances of securing a conviction. Many magistrates were clearly hostile to trade union activity. Moreover, activities giving rise to criminal charges heard in the heat of a strike were more likely to be seen as serious disruption of public order requiring swift action.15 To preserve some space for picketing in the face of hostile judges, the TLC called on the federal government to make two amendments to the criminal law. It wanted the Criminal Code amended by removing the term ‘watching and besetting’ from the provision in regard to strikes. The Congress made it clear that it did not condone intimidation, but complained that decisions like that in favour of Massey threatened their right to use persuasion. Despite the TLC’s persistence, the federal government did not respond until 1934. On the second matter, the right of strikers charged with the offence to elect trial by jury, the Congress had greater success. In 1905, the law was changed to provide for this right. In an editorial in Industrial Canada, the CMA expressed its displeasure with the change: When a strike is on and lawlessness is rampant, the guilty ones must be punished promptly. To have the accused go before the magistrate and elect to be tried by jury and then to secure his liberty on bail makes the arrest a farce. To punish an offender six months after the arrest and when the labor trouble is settled, not only fails to prevent other acts of lawlessness during the strike, but makes a conviction hard to secure and the prosecution, as nothing to be gained by it, most objectionable.16 As the CMA feared, the delays occasioned by allowing striking workers to elect trial by jury enabled them to continue their picket-line activities.17 On balance, the efforts to have peaceful picketing treated as a criminal offence met with mixed results. While the expansive view of

28

L ABOUR BEF ORE THE LAW

the criminal prohibitions on picketing predominated on the bench, some judges were not prepared to send striking workers to jail simply for peaceful persuasion. It was difficult to see how such activity threatened the public interest or justified a direct coercive response by the agencies of the state. However, this did not mean that the criminal law was not helpful to employers or that a narrow definition of the criminal law prevailed. As Industrial Canada correctly noted, some judges, most notably Mathers in Winnipeg, were quite willing to extend the scope of the criminal prohibition to include peaceful picketing.18 Employers were able to use the law to make it more difficult for skilled workers to use their traditional supply-side strategies—withdrawing labour and picketing to discourage replacements—to disrupt their employers’ production. Better organized strikebreaking and the availability of injunctions and criminal prosecutions to stop any activity that hinted of compulsion or force had an impact. Contacts between strikers and replacement workers and potential recruits had to be handled more delicately than they had in the past. Other tactics were needed and demand-side strategies, most notably boycotts, began to be pursued more vigorously. These took two forms: consumer and trades boycotts. The first consisted of an organized campaign to convince consumers not to purchase goods manufactured or supplied by employers who were ‘unfair’ to labour, while the second involved a refusal by other trades to handle goods produced by nonunion or scab labour. These strategies had been tried sporadically in Canada in the late nineteenth century with limited success. Employers had denounced this practice, but had not felt sufficiently threatened to develop or pursue a legal counterattack. At the turn of the century, the international unions promoted boycotting in Canada, and Canadian employers, like their British and American counterparts, turned to the courts to prevent it.19 On several occasions courts enjoined striking unions from organizing consumer boycotts. What was new in the 1902 strike against the Gurney Foundry in Toronto was that third parties, including a labour newspaper that promoted the consumer boycott, were enjoined. But, as was the case in many of the actions brought against trade unions, aside from the fact that the injunctions were granted, there was no conclusive end to the litigation about the legality of calling consumer boycotts or the liability of trade unions or their officers. Ultimately, the expense of continued litigation and the threat of financial liability for damages tipped the balance in the employers’ favour without the need for a definitive legal ruling.20

COURTS AND CONCI L I AT I O N

29

The second demand-side solidarity tactic, the refusal by organized employees to handle materials from non-union or ‘unfair’ firms, was challenged by the Metallic Roofing Company in what was the most famous litigation of the period. The company quickly obtained an interim injunction to prevent the Amalgamated Sheet Metal Workers International from pursuing the boycott it had declared against Metallic’s goods and from watching and besetting. Once the injunction was firmly in place, two important legal issues remained outstanding: the question of trade union status and the legality of the hot goods declaration.21 Metallic was quick to publicize its legal action against the sheetmetal workers in the pages of Industrial Canada. Its general manager, J.O. Thorn, was a member of the CMA’s executive committee and the chairman of its Ontario division. He informed the 1903 CMA convention of the legal case he was pursuing against the sheet-metal workers’ union in an attempt to have the union made legally responsible for the actions of its members. The progress of the case was closely followed in the pages of Industrial Canada and, as it wound its way through the legal labyrinth, the CMA eventually contributed $9,000 towards the costs of the prolonged legal battle.22 The CMA was firmly convinced of the need to hold trade unions legally responsible for the actions of their members. Adam Shortt, a professor of politics and economics at Queen’s University who would later become one of the most influential industrial disputes conciliators for the federal government, advised the CMA of the need to make trade unions responsible entities at law. Although he suggested that the recent decision of the House of Lords in the Taff Vale case, which imposed legal obligations on trade unions, might be applicable in Canada, he preferred incorporation as the technique to force trade unions to accept responsibility for their actions. This position was endorsed by a Special Committee on Labor appointed by the CMA at the 1902 convention. Complaining that ‘labor organizations in Canada are irresponsible bodies before the law’, it called for their incorporation as national organizations, governed by Canadian officials, free from foreign control.23 While the CMA continued to lobby on the political front to make trade unions legally responsible, Metallic pressed on in the courts. In January 1905, the Ontario Court of Appeal decided that although trade unions could not be sued in their own name, since they had no legal existence, the plaintiff could proceed in a representative action against both the local and the international union. In October, the trial on the second legal issue, the legality of the hot goods declaration, took place.

30

L ABOUR BEF ORE THE LAW

The jury found that the plaintiff’s employees ‘had been wrongfully and maliciously coerced to leave its employment’ by the defendants and that the defendants conspired by threats or intimidation to induce Metallic’s customers to refrain from dealing with it. The jury assessed damages of $7,500. On the basis of these findings, the trial judge awarded damages to the plaintiff, held that trade union property was liable to satisfy the judgement, and made the injunction perpetual.24 This verdict set off a fresh round of appeals that ultimately led to the Judicial Committee of the Privy Council (JCPC) in Britain. The Ontario judges who heard the appeals were unanimously in favour of imposing liability and could scarcely conceal their hostility towards the union’s goals and methods. The Judicial Committee, however, allowed the appeal and sent the case back for a new trial, but it avoided the substance of the legal dispute. Instead of ruling on the legality of the means used, the JCPC found that there had been a misdirection by the trial judge that may have left the jury with the mistaken impression that it was an actionable wrong in itself for the union to call its members out on strike. When this ruling was finally handed down in 1908, the parties had had enough and they eventually agreed to dismiss the action without costs.25 The CMA put a positive gloss on the JCPC decision, reassuring its members that it in no way affected the substance of the rulings on the illegality of boycotts. For very different reasons, the TLC also celebrated the success of the appeal and congratulated the victors. However, their potential liability for the actions of their members plagued trade unions as employers continued to resort to the courts to force them to behave responsibly. Trade union officers were threatened with contempt and occasionally committed to jail for refusing to disclose the internal workings of their organizations to employers’ scrutiny in court. In Winnipeg, on two occasions, Justice Mathers simply assumed that trade unions were liable at law for damages resulting from the actions of their members and in both cases his ruling was affirmed by the Manitoba Court of Appeal.26 Employers had great success in institutionalizing new weapons to repel skilled workers’ traditional strike tactics. Actions for damages against trade unions were pursued by employers determined to weaken trade unions. Consumer boycotts and refusals by workers in other locations to handle struck or non-union work were characterized as tortious interference. Inducing replacement workers to breach their contracts of employment, for example, by offering to find them alternative work, was also wrongful. Workers also could not trespass on employers’ property or create nuisances. Once employers established

COURTS AND CONCI L I AT I O N

31

their legal rights, injunctions could be issued and damages claimed against individual workers and trade union officials personally, and against unions through representative actions. On the criminal side, physical coercion, threats, and intimidation were clearly prohibited, although the limits on peaceful communication were less certain. Individual skilled workers who wished to remain outside of unions also sought recourse to the courts. Some challenged union membership requirements and the right of unions to insist that employers only employ their members, but the courts’ responses to these actions were equivocal. Trade unions were potentially vulnerable to challenges brought by individual workers, although they were rarely convicted of conspiring to injure them.27 Employers also sought to use the law to maintain a common front against trade union demands. In 1905 the Master Plasterers’ Association in Montreal brought an action to enforce liquidated damages against one of its renegade members who broke a lockout pledge. At the trial of the action, Justice H.C. SaintPierre reasoned that so long as workers were permitted to combine to back their demands, then ‘it is as clear as the sun’s light at noonday’ that employers were free to combine to resist them and ordered the defendant to pay damages and costs.28 When employers turned to the courts, workers contested this legal offensive and partially blunted its effectiveness. Strikers were rarely sentenced to jail unless an assault was involved, although most judges were not prepared to condone anything beyond the most innocuous, and least effective, forms of communication.29 While unions had some success in defending members who were charged with contempt for violating injunctions,30 they were less successful in challenging the injunctions themselves. On the question of trade union status, most judges would not recognize the union as a separate legal entity, although representative actions could achieve a similar result. Union lawyers had little success in convincing judges that the closed shop was a lawful object or that boycotts and sympathy strikes were lawful means. Yet, when some union members and officials committed unlawful acts, their lawyers learned to take advantage of procedural and technical niceties to avoid liability. And although employers found it difficult to attach trade union funds, a determined employer could seriously deplete a union’s financial resources.31 Trade unions occasionally attempted to use the legal process offensively against employers’ traditional tactics, which included blacklisting, importing scabs, and using detective agencies.32 So, too, did individual workers; a picket who was arrested and subsequently acquitted brought an action for false arrest and imprisonment, while a

32

L ABOUR BEF ORE THE LAW

strikebreaker who quit his employment brought a charge in police court against the company when it withheld his tools.33 Whatever their harassment value, ultimately, few of these legal counterattacks were successful. However, the Vancouver Trades and Labor Council successfully obtained an injunction to prevent a construction company, which was flagrant in its commitment to the general open shop drive against the building trades, from breaching its contract with them by using non-union labour in the construction of the new Labour Temple. But this victory was short-lived, as the employer subsequently refused to agree to a similar clause.34 Strikebreakers and detectives were occasionally charged for their violent actions, but there were numerous complaints about the failure of the police and courts to protect striking workers from their provocations.35 Legal recognition of employers’ rights did not enhance their legitimacy with trade unionists, however much legal sanctions may have resulted in their pragmatic acquiescence to them. The TLC publicly condemned ‘government by injunction’ as an ‘accursed system’ that ‘deprives citizens of the right to trial by jury’, complaining that judges were biased against the working man.36 They called for legislation modelled on the British Trade Disputes Act, which relieved trade unions from many of the oppressive incidents of judge-made law. Moreover, unionized workers never accepted the legitimacy of scab labour, despite judicial rhetoric defending its use on the grounds of individual freedom. Not only were striking workers prepared to intimidate verbally, but picket-line violence against replacement workers leading to criminal charges was not uncommon, despite the TLC’s official condemnation of intimidation.37 Illegal boycotts and sympathy strikes became less frequent, but such action generally required a higher degree of organization than spontaneous acts of defiance. If craft union officials, concerned about the institutional consequences of lawbreaking and their personal liability, were loath to provide the necessary leadership, that should not be mistaken for acceptance in principle of the right to trade by union leaders or their membership. Although employers did not need to be convinced of the legitimacy of their actions, generally, the courts confirmed it. While the CMA was prepared to admit that workers were free to go on strike, they never accepted the closed shop or the use of any tactics by strikers to persuade others to support them.38 Overwhelmingly, the judiciary was suspicious of strikers’ behaviour, opposed to sympathy action, and inclined to hold trade unions liable for the actions of their members. Employers’ only major complaint with the courts was their

COURTS AND CONCI L I AT I O N

33

unwillingness to impose corporate liability directly on trade unions. For this they turned to their political representatives, especially members of the Senate; they demanded legislation that would both deal with foreign agitators and hold trade unions liable for the actions of their members. While employers were generally happy with the reception of their claims by the courts, they were suspicious of juries. Trial by jury not only delayed punishment, but made convictions less certain. Employers opposed the right of strikers charged with a criminal offence to elect trial by jury and attempted to influence where jury trials would be held. They wanted to reduce the possibility that juries would be composed of members from strike-riven communities who would be biased against them. Unions were also aware of the tactical significance of trial location and attempted to have trials held close to the strike.39 This does not mean, however, that juries were unwilling either to convict striking workers or to respect claims of employers’ rights. Juries not only convicted striking workers of picketing-related offences, they also assessed damages against trade unions that committed civil wrongs against employers.40 Although juries were uncomfortable with blacklists, they acknowledged that employers had the right to use this tactic.41 In part, jury findings against striking workers and unions may be explained by juries’ general acceptance, if not full endorsement, of judicial instructions, which overwhelmingly tended to favour employers’ rights. And although no clear evidence establishes that juries were more inclined than judges to tolerate the persuasive tactics of striking workers, both employers and unions were convinced that they were. Craft unions survived the employers’ legal offensive against the closed shop, but they were chastened. In Toronto, one of the strongholds of craft unionism, union membership as a proportion of the city’s workforce fell steadily between 1904 and 1914. The severe depression of 1907–8 weakened the craft unions. ‘Toronto was the keystone’, boasted a delegate at the 1908 convention of the CMA. ‘We have knocked the keystone from underneath and now they are civil and treat us as they should treat us, as men who have equal or greater responsibilities.’42 For skilled craft workers the courts were the primary arena in which the boundaries of industrial legality were drawn. However, the bench was not the exclusive terrain of struggle. Skilled workers understood the significance of immigration policy for their labour market power and opposed active state recruitment policies, generally with little success. In particular, they opposed the employers’ right to

34

L ABOUR BEF ORE THE LAW

recruit replacement workers from the United States. Together with other unions, the crafts sought to use the Alien Labour Act to protect striking Canadian workers from having their jobs taken by imported American strikebreakers. Skilled workers in the trades were also prepared to use official conciliation services if such were available, even though the international craft unions were suspicious of state intervention. These unions were of the view that government should confine itself to intervening when requested and to keeping the courts out of labour disputes. But both employers and craft unions tolerated informal conciliation by politicians, clergymen, boards of trade, members of legislatures, and other prominent individuals. However, conciliation proved not to be very effective in ending strikes where the dispute revolved around the union’s control of either the labour market or the labour process.43 For the majority of workers employed outside of the skilled crafts, their struggle was not centred in the courts. Although the criminal law was always available to set the outer bounds of acceptable strike behaviour, its enforcement capacity was weak when confronted with mass unrest. Threats to public order were contained by the militia and military as well as by the police. In large strikes, criminal law was supplementary rather than decisive in shaping the outcome of disputes.44 Workers in the transportation and resource sectors were much more willing than their craft counterparts to look to the state for assistance. In these strikes, federally appointed conciliation boards, rather than the courts, provided the template of industrial legality. But, as we shall see, the normative framework developed under federal conciliation was very similar to that developed by the courts.

The Limits of Conciliation: The Federal Government’s Intervention in Industrial Disputes Besides recourse to the courts, a second distinctive element of the emerging regime of industrial legality was the stronger presence of the federal government. Provincial governments continued to play a role, but the centre of gravity shifted to the national level. Labour power was recognized as a crucial element in the federal government’s national development strategy, and organized labour’s resistance was identified as a potential problem for this strategy. Labour power was a crucial component in Canada’s economic expansion and the almost insatiable demand for it was met by massive immigration. The TLC continually objected to the federal government’s schemes to attract agriculturalists on the grounds that most of

COURTS AND CONCI L I AT I O N

35

them simply entered the expanding supply of unskilled labour. In British Columbia, Oriental immigrants were long the targets of demands for restrictive immigration policies. Trade unions and workers regarded these workers as a threat to their jobs, wages, and safety, and both nativist sentiments and racist stereotypes led them to see exclusion as the best response.45 Of particular concern to organized labour was the importation of contract labourers from other countries, especially if they were to work as strikebreakers. Attempts to outlaw these practices at the provincial level proved unsuccessful. Inspired by the application of American foreign contract labour law against Canadian workers, the TLC began to push the federal government first for retaliatory legislation and, once that was won in 1897, then for its more effective enforcement.46 This was not the only matter upon which the TLC pressed the federal government. It had long demanded both provincial and federal labour bureaus that would collect statistics on wage rates, immigration, and industrial disputes and lobbied for legislation to curb the worst effects of the competitive labour market. Moreover, it urged the federal government to provide compulsory arbitration to resolve industrial disputes.47 But despite its national presence, the TLC hardly represented a unified labour movement. At the turn of the century its was an unstable amalgam of international craft unions affiliated with the AFL, internationals in the railway running trades that were outside the AFL, a sprinkling of some Canadian unions, and the Knights of Labor. Its political position and platform were similarly diverse, including labourism and socialism. The TLC had two chips it could play in its political bargaining with the federal government: Laurier’s need to have his government perceived to be a friend of the working man and its own respectability when contrasted with more radical labour organizations. Its political voice gained strength with the election of two labour-backed Liberal candidates to Parliament in the early years of the century. Moreover, strikes in infrastructural industries threatened the smooth operation of the federal government’s development strategy and were an increasing concern to it. Under Laurier, what began as ad hoc and informal intervention in industrial disputes was transformed into an explicit public policy of conciliation. At the turn of the century, these pressures prompted the federal government to establish a specialized bureaucracy to monitor and report on the various aspects of the labour problem, to administer its nascent labour policy, and to institutionalize its interest in the

36

L ABOUR BEF ORE THE LAW

resolution of industrial disputes. The new Department of Labour was initially placed under the authority of William Mulock, the PostmasterGeneral, but it was Mackenzie King, its energetic top bureaucrat, who shaped the government’s labour policy. Moreover, when labour was given its own ministry in 1909, King took over the department’s political mantle upon his election to Parliament. The Department of Labour’s tasks were several. One job was to collect information on all aspects of labour in Canada and to publish it in the Labour Gazette. The Gazette soon became the official voice of federal labour policy, summarizing the positions of employer organizations and trade unions. Distributed to employers and trade unions across the country, the Gazette not only identified and described the labour problem, it also offered a solution in the normative framework provided by the conciliation reports it published. The department was also responsible for administering the Alien Labour Act. This legislation, which prohibited the importation of labour under contract from the United States, was a thorn in Laurier’s labour policy. The Prime Minister was not in sympathy with it, although he saw the need for some form of symbolic response to American protectionism. Employers were opposed to it and simply ignored it by continuing to bring in workers from the United States to break strikes. The conciliation services provided by the department institutionalized the federal government’s growing interest in resolving industrial disputes. King soon became the government’s chief conciliator and although his contribution was considerable, the general orientation of the government’s policy was established prior to his arrival. Compromise, rather than an imposed settlement, was the government’s preferred solution to the problem of labour unrest. Although the TLC initially pressed for compulsory arbitration, the federal government insisted that such an extreme form of intervention was outside its jurisdiction as it impinged on property and civil rights, areas of provincial legislative authority. Commenting on the Conciliation Act, TLC president Ralph Smith told the Congress that ‘whilst it does not go the distance that many would desire, it is our duty as honest men to appreciate the step taken.’48 The federal government’s administration of the Alien Labour Act and its conciliation practices proved to be contentious. The enforcement of the Alien Labour Act in a specific context could be decisive to the outcome of a strike, which tended to politicize the government’s role. Intervention in industrial disputes was similarly controversial since it raised the political stakes about the eventual outcome.

COURTS AND CONCI L I AT I O N

37

Organized labour and employers were deeply opposed over the appropriate role of the government. The Liberal government’s challenge was to find a way of intervening that did not threaten its appearance of neutrality while simultaneously facilitating a settlement of the dispute. The government’s response to this challenge was first elaborated by Roger Conger Clute in the context of a series of lockouts and strikes in the silver and copper mines in the Slocan and Rossland areas of British Columbia that were precipitated by the mine operators’ attempt to use their economic power to undermine the mine workers’ political victory in having achieved eight-hour-day legislation. Clute, a lawyer who had earlier been the president of the illfated arbitration council in Ontario, was appointed by Laurier initially to examine the WFM’s complaint that the Slocan mine operators were importing strikebreakers from the US in violation of the Alien Labour Act and later to help settle a strike in the Rossland gold mines. His intervention in these disputes not only established a pattern followed by subsequent conciliators, most notably Mackenzie King, but the official reports formed the basis for the federal government’s labour policy. Clute was central in developing the paradigmatic Liberal approach to labour relations; the federal government would provide the legal infrastructure for resolving labour disputes, but the parties were required to initiate any state intervention.49 Clute’s first report confirmed the miners’ suspicion that the Alien Labour Act was a dead letter, provoking the newly formed provincial organization of the WFM, District 6, to campaign for amendments to strengthen the law. In his second report, Clute extolled the benefits of his brand of conciliation and recommended its institutionalization. He drafted a conciliation statute, modelled after the English Conciliation Act of 1896, which authorized the Minister of Labour to investigate a dispute and arrange a conference between the parties and permitted either party to request conciliation. This legislation was quickly enacted in 1900.50 The flagrant strikebreaker recruitment practices of the Kootenay mine operators unleashed a torrent of demands for the Alien Labour Act’s revision. Unions were disturbed by the long delay between registering the complaint and getting the Department of Justice to act on it. The WFM recommended that the Act be amended to allow any workers to set its enforcement in motion by bringing a complaint to a local judge or magistrate. Clute endorsed this solution; in a memo to Laurier he wrote that ‘until those who are interested in enforcing the Act feel that they are at liberty to do so, it will be unsatisfactory.’

38

L ABOUR BEF ORE THE LAW

Laurier embraced it as the answer to his political problem and the Act was amended to allow private individuals to instigate prosecutions.51 The Rossland miners attempted to enforce the newly amended Alien Labour Act against the mine managers who had begun to import European workers from the United States to work in the mines.52 However, the mine union’s initial success in bringing a prosecution under the Alien Labour Act did not inhibit the flow of strikebreakers. Even though a Department of Labour official who was briefly on the scene confirmed that the legislation was being violated, the government refused to enforce it. In response to a complaint that his government was abdicating its responsibility, Laurier responded: Permit me to remind you that the Alien Labour Act was amended last session at the request of the Labour Associations. By the Act of 1897, it was provided that the enforcement of the Law should be in the hands of government. This disposition was found fault with, and it was advocated by several persons who pretend to be the champion of Labour societies, that this law, like all other laws, should be left to the parties. The Government yielded to these representations, and the Act was amended accordingly last session.53 While judicial enforcement by miners of restrictions on the importation of strikebreakers was cumbersome and ineffective, employers obtained quick assistance from the courts when they sought to restrain strikers from contacting potential recruits. Unable to do anything to restrict the use of strikebreakers and stymied by injunctions, the union acceded to King’s suggestion, which was made on the instruction of the Minister of Labour, that he be sent to Rossland to investigate and conciliate the dispute. However, when the WFM refused to accept King’s advice that it abandon the issue of recognition and concede to the mine operators’ demands, he returned to Ottawa and subsequently castigated the union in his official report.54 King’s experience at Rossland shaped his understanding of labour relations and had a lasting influence on how he would conduct the federal government’s conciliation services. It helped to convince him that the issue of union recognition was particularly unsuited to conciliation. The contrast between how events unfolded at Rossland and the outcome of other disputes where the union did not insist on recognition was stark.55 The lesson he learned from the British Columbia mining strikes was that only if unions were prepared to compromise on the issue of recognition would it be possible to achieve a settlement. It was not until he was forced to, decades later as Prime Minister during World War II, that he ever seriously contemplated

COURTS AND CONCI L I AT I O N

39

compelling employers to recognize their workers’ choice of representative as the solution to labour unrest. King also developed a lasting antipathy to the WFM in particular and to sympathy strikes in general. His distaste for this union and its tactics was later elevated to a principle of government policy in the Report of the Royal Commission on Industrial Disputes in British Columbia. The federal government’s intervention in Rossland also left a lasting impression on the WFM and its friends in the labour movement. Along with the WFM in the Kootenay mine strikes, several unions, including the craft unions in southern Ontario, had sought to enforce the Alien Labour Act to stop employers from recruiting strikebreakers from the United States. Despite the fact that several of these prosecutions were successful, resulting in both fines against the contracting employer or its agent and deportation of the alien worker, this method of enforcement was both expensive and time-consuming.56 Instead of inhibiting employers from using strikebreakers, private prosecutions simply resulted in a legal war of attrition between the parties to the dispute, while the federal government got off scot-free. J.G. O’Donoghue told the 1902 convention of the TLC that ‘no one thought, nor was it ever suggested, that the purpose of this amendment was to restrict the powers of the government.’57 The attempt in 1902 by the TLC’s Smith to have the power of investigating complaints and enforcing the Alien Labour Act transferred from the Department of Justice to the Department of Labour, which might prove more susceptible to labour’s pressure, failed. The federal government’s commitment to the legislation was purely symbolic. It was not prepared to intervene to stop employers from recruiting strikebreakers from south of the border. If labour wanted to use the legislation in this way, it would have to bear the expense and the bother. The Rossland strike proved to be a turning point for the WFM. The civil and criminal law undermined its ability to dissuade strikebreakers from working for the mining companies, and the employers’ actions for damages threatened one of its most valuable assets—the strike fund. The federal government refused to enforce its own law against the mine operators when they recruited scabs from the United States, and King’s attempt at conciliation had proved useless, if not downright damaging, from the WFM’s perspective. Despite continued attempts by the WFM to develop co-operative relations with employers, ultimately the mine owners’ intransigence, combined with the refusal of the federal government to assist the miners, provoked the WFM to break with the moderate traditions of labourism and adopt more militant tactics. Syndicalism and socialism became more attractive as

40

L ABOUR BEF ORE THE LAW

labourism’s appeal was undermined by the failure of government to enforce even moderate legislation in the face of concerted employer opposition. Moreover, as the nature of mining changed, employing greater numbers of unskilled workers, the WFM modified its organizing tactics, seeking to represent and bargain on behalf of these workers. Industrial unionism increasingly began to replace the craft unions, especially in British Columbia. Unions had good reason to be sceptical of the benefits of voluntary conciliation in the resolution of industrial disputes. Earlier legislation providing a framework for voluntary conciliation in British Columbia and Ontario had not been effective where employers were both strong and determined enough to break their employees’ union. Even the Nova Scotia compulsory arbitration scheme was of no help to unions faced with intransigent employers since strikes were the only form of sanction. Such limited forms of state intervention simply did not work to settle disputes when the issues were fundamental.58 The federal conciliation mechanism suffered from the same defects. Between 1900 and 1907, when it was superseded by another piece of legislation, the process under the Conciliation Act was initiated on 41 occasions. In 10 of these instances, the initiative went no further since the offer was rebuffed by one of the parties. The bulk of the Department of Labour’s involvement in conciliation was in Ontario and Quebec, since this is where the majority of strikes occurred during the first strike wave. Here, conciliation efforts were clustered in manufacturing, especially metal and textiles. The remaining interventions were scattered across the country, although they predominated in the resource regions of Alberta, British Columbia, and Nova Scotia and involved the staples-producing sectors of the economy and interrelated transportation utilities, especially mines and railroads. Although conciliation was invoked in disputes ranging from a handful of men to entire mining communities, it generally was used in larger establishments where the effects of the strike were highly visible.59 King’s strong influence on the practice of conciliation is undeniable; his presence is recorded in 28 of the department’s interventions. His interventions in the British Columbia mines were part of a larger pattern. Not only did he act as a go-between for the parties, he also formed his own assessment of whether the union was likely to win the dispute. He generally accepted the employer’s characterization of the business situation and from that basis tried to work out a compromise. When the issue was squarely one of the employer’s refusal to recognize the union, there was little room for him to manoeuvre.

COURTS AND CONCI L I AT I O N

41

His primary concern was to restore labour peace, not the justice of the unions’ demands, and on that criterion his intervention was often successful. It is not surprising, given his practice, that unions did not do very well by King’s interventions. The vast majority of the disputes in which he was involved were settled on terms favourable to the employer. However, it is difficult to conclude that conciliation lessened a union’s chances of winning a dispute. When conciliation was requested but later turned down by the department because of the refusal of one of the parties to participate, unions were no more successful than they were under conciliation. It may have been the case that unions sought conciliation precisely in those situations where it was least likely to work since the issue was not amenable to compromise. But so long as the employer was not prepared to recognize the trade union and the workers were not prepared to compromise on this demand, federal conciliation clearly was of little assistance. The federal government refused to intervene to shift the balance of power in favour of unions, despite the fact that in several of the disputes where conciliation was invoked employers had sought recourse to the courts, police, and militia to strengthen their position. The inadequacies of conciliation were most clearly demonstrated in railway and mining strikes. Although strikes in manufacturing and construction predominated in the first strike wave, transportation, especially railways, and mining were riven with industrial conflict. Moreover, strikes in these sectors were large. Even a short shutdown of a major railway line could disrupt the Liberals’ national development policy. Mining strikes, which tended to be lengthy, were not only potentially devastating to regional economies, with profound consequences for provincial government coffers, but their economic effects attracted federal attention. Several of the unions involved in these strikes organized the unskilled on an industry-wide basis and broke with the more conservative politics of their craft brethren. And these unions were not prepared to compromise on their demand for recognition. In short, many of the railway and mining strikes during the early years of the Department of Labour’s conciliation activities involved new industrial unions in battle against powerful employers over the issue of recognition. Not surprisingly, these unions were not content with government intervention that was limited to voluntary conciliation. They assumed that arbitration would encourage bargaining because it would limit the employer’s power to act unilaterally. The federal government was especially concerned with the economic havoc that railway strikes could wreak on Canada’s fragile economy;

42

L ABOUR BEF ORE THE LAW

indeed, the 1901 strike of CPR maintenance-of-way employees caused federal officials to doubt whether voluntary conciliation was sufficient to ensure industrial peace across the country’s vast transportation network. For a moment, the political forces supporting compulsory arbitration for railway disputes were aligned, and William Mulock, who handled the Labour portfolio, introduced a bill providing for binding arbitration on steam and street railways in the House at the end of April 1902. But that moment quickly passed and the government abandoned the arbitration bill.60 King went to work on developing a less intrusive form of intervention for railway disputes. He came up with a technique that emphasized investigation and steered a course between the voluntarism of the Conciliation Act and the more robust form of intervention contemplated by arbitration. Commenting on the failed arbitration bill, King wrote that: the difficulties besetting the enforcement of awards, and the liability of error arising in the judicial determination of relations which, in the interests of the parties and the business community must ultimately be determined by economic forces, appeared to be the strongest arguments urged against the principle of the measure, while at the same time mention of them helped to steer an alternative method better suited to the end in view.61 King’s bill, the Railway Labour Disputes Act (RLDA), was introduced on 17 March 1903 and received royal assent on 10 July.62 Modelled on antipodean legislation, it established a two-stage form of intervention, first conciliation, to be followed by arbitration, if necessary, to aid in the settlement of railway disputes. Intervention could be triggered by the parties, any municipality directly affected by the dispute, or the minister responsible for labour. In the event that the dispute was not resolved, the arbitration board was fortified with quasi-judicial powers of investigation and was required to issue a normative report on the dispute, which was to be published in Labour Gazette. Instead of imposing the recommendations of the board on the parties, the government was content to rely on the influence of public opinion. According to King, the threat of public exposure of the reasons for a dispute would give the parties strong reason for reaching a settlement by themselves. Thus, he concluded that ‘the success of the measure as a means of preserving industrial peace is to be estimated, therefore, by the absence of any reference under it, quite as much as by the number of cases which may be referred and the awards given.’63

COURTS AND CONCI L I AT I O N

43

By King’s measure, the RLDA was a success. It was only invoked on three occasions during its 80-year history. In part, this is attributable to the existence after 1907 of an alternative form of state intervention in railway disputes that was more attractive to railway employees. On the only occasion prior to 1907 when the RDLA was invoked, in the conflict between the Grand Trunk and the telegraphers in 1904, the dispute was successfully settled at the arbitration stage. Although there was subsequent trouble in implementing the arbitration award, both the TLC and the telegraphers’ union absolved the government of any fault, pinning the blame on the railway company’s failure to live up to the agreement.64 Despite its sparing use, the RLDA had a profound impact on subsequent federal labour relations legislation. It introduced the first element of compulsion into the federal government’s intervention into industrial disputes in the form of the power to compel testimony and order the production of documents. It also established the federal precedent of enacting legislation directed to disputes in specific industries, in particular, those essential to the government’s national development strategy. The use of ad hoc tripartite boards, which this legislation introduced, remained the federal government’s preferred agency of intervention until well into World War II. And, most importantly, with the Railway Labour Disputes Act the federal government rejected both voluntary conciliation and compulsory binding arbitration in favour of compulsory conciliation and investigation backed by publicity as the form of intervention. Although conciliation and compulsory investigation were the federal government’s preferred techniques of intervention, it continued to provide a coercive apparatus that could be invoked to restore public order. Not only was the power to summon the militia conferred by federal statute, the troops were under the control of the federal authorities. In fact, military interventions in strikes increased dramatically in the opening decade of the twentieth century. The militia was called out on eight occasions between 1900 and 1904, predominantly in Ontario and Quebec.65 In most cases the strikes involved unskilled workers and they were divided among light manufacturing, transportation, and resource sectors. Many of them involved the new unionism that sought to organize all of the workers in an industry, including the unskilled. In almost all of the cases where the militia was deployed, various attempts at conciliation, often informally by local officials or under the auspices of the federal government, were made. Only where strikes were spontaneous uprisings of workers without union organization was the militia sufficient

44

L ABOUR BEF ORE THE LAW

to end them. Although the troops were capable of imposing order, conciliation was often needed to resolve the dispute in situations where unions were becoming entrenched. Conciliation sometimes could secure the withdrawal of the troops and end the strikes. However, it did not simply redound to the benefit of the strikers or their unions. Its power was only exhortatory, and even then its support for trade unionism was weak. The increased use of the militia in strikes provoked the 1902 convention of the TLC to adopt the following resolution: ‘That whereas the militia has been called on to aid monopolists in the recent strikes at Toronto, Valleyfield, London and other places [the convention] urges all union men to abstain from joining military organizations excepting when this country is invaded.’66 In subsequent years, the convention did not endorse similar resolutions; however, it demanded restrictions on the use of the militia in strikes. Moreover, strike duty was extremely unpopular among militia members.67 The federal government’s apparent willingness to allow troops to be called out to restore labour peace stood in marked contrast to its refusal to compel employers to accept a trade union’s demands in order to achieve a settlement of the dispute. The Laurier government was concerned that this might give rise to a perception of bias in favour of employers in the resolution of industrial disputes and it took great pains publicly to distance itself from the actual deployment of the militia (although at times it participated covertly in its deployment). It insisted that it did not call out the militia; rather, local authorities, which included municipal and provincial governments as well as magistrates, did.68 Although municipal officials readily called out the troops during the first strike wave, they were not willing to pay their cost. Military commanders on several occasions were forced to bring suit against municipal officials to recover the expense of the call-out. In 1904, the federal government made it a legal requirement for the municipality to put down a substantial deposit in order to requisition troops and it more strictly circumscribed the officials who had the authority to call out the troops. As well, the law was changed so that regular troops were to be sent out before recourse could be had to the voluntary militia. By the end of the first strike wave, the federal government had established the contours of its labour policy. Direct federal government coercion, in whatever form, was to be avoided, although it provided a coercive infrastructure, both through the criminal law and aid to civil power, which could be invoked by local authorities. The only direct compulsion the Laurier government was prepared to countenance was

COURTS AND CONCI L I AT I O N

45

for the purpose of investigating industrial disputes, and even then it was limited to subpoena powers. Compulsory investigation was to be used as an aid to conciliation, rather than to force the parties to adopt a particular outcome. These policies pertained so long as the dispute was a private economic one that did not challenge the limits of constituted authority. Unions that refused to recognize these legal boundaries were a completely different matter altogether. The strikes that swept through British Columbia in 1903 revealed the limits of conciliation since the unions that led them were not of the ‘responsible’ variety. The WFM and the United Brotherhood of Railway Employees (UBRE), which had begun to organize railway workers who were not part of the running trades, were affiliated to the American Labor Union (ALU), which had endorsed the Socialist Party in the US. Moreover, the organizational structure and tactics of these unions also challenged established norms. By organizing all of the workers in an industry, they sought to take wages out of competition by negotiating what were in effect sectoral agreements. What the UBRE and the WFM could offer their members was an international strike fund to support them and their families during recognition struggles. Union solidarity was not limited to financial assistance; sympathy action, especially in highly integrated sectors like transportation, could also be used to bring pressure to bear against intransigent employers. Senator William Templeton from British Columbia and Ralph Smith of the TLC, along with William Mulock, were convinced that the American unions were responsible for the British Columbia railway and coal strikes, and they asked Laurier to appoint a Royal Commission to investigate the disputes. By May, public attention and political pressure reached the point that Laurier acquiesced. Chief Justice Gordon Hunter of the British Columbia Supreme Court and Reverend Elliot S. Rowe, a prominent Methodist minister in Victoria, were appointed as commissioners and Mackenzie King was made their secretary. This was not the first time that Hunter was asked to adjudicate the legality of the WFM. The legal actions from the Rossland strikes were winding their way through the courts and in January 1903 Hunter presided over a panel that refused to allow the union to alter its pleadings to assert that no action could be brought against it because it was not a legal entity. Later he insisted that the trial take place in Victoria and chastised the local’s lawyer for helping the union to evade paying the damages and costs to the mining companies. King was also well acquainted with the WFM, having on several occasions, including the Rossland debacle, attempted to conciliate its disputes.69

46

L ABOUR BEF ORE THE LAW

From the beginning, the inquiry took the form of a trial of the legitimacy of the WFM. Although the evidence clearly established that the employers had engaged in extremely high-handed tactics, including murder, and that there was a long history of employee grievances against autocratic employers, the Commission was preoccupied with establishing that the strikes were organized by foreign agitators.70 It recommended that the federal government declare both the UBRE and the WFM to be illegal organizations. The fact that the unions were headquartered in the United States attracted particular attention as a threat to national sovereignty. The Commission proposed to make it a criminal offence punishable by either fine or imprisonment for any person not a British subject and who had not been residing in Canada for at least one year to recommend, incite, or call Canadian workers out on strike. Although aimed at the officers of the ALU and its affiliates, ‘who are not trade unionists, but socialist agitators of the most bigoted and ignorant type’,71 the proposed criminal prohibition was sufficiently broad to sweep AFL union organizers and officials, who under the Commission’s own definition represented legitimate trade unions, within its net. The Commission made it very clear that the state had an interest in preventing strikes in order to avoid the loss and injury that would otherwise occur to the public. To this end, it recommended that the federal government intervene at the earliest stage of the trouble and proposed that no strike or lockout should be allowed unless 30 days’ notice was given. This delay would permit an opportunity for conciliation and/or an investigation. Moreover, it singled out strikes in public utilities and coal mines for special treatment, urging the government to put in place a mechanism whereby it could invoke judicial arbitration of any such dispute. Although the federal government did not accept compulsory arbitration as a general method for resolving industrial disputes, the compulsory cooling-off period and the focus on specific industries were central features of King’s next piece of labour relations legislation, the Industrial Disputes Investigation Act, 1907. The report of the Royal Commission also provided a code of the rights of employers and workers in relation to strikes and lockouts. In effect, the Commission’s code was simply a statement of the existing law relating to strikes, one that Chief Justice Hunter was well placed to provide. According to the Commission: It is generally recognized that the workmen are justified in combining together to secure increased wages or shorter hours, or other legitimate changes in the conditions of their employment,

COURTS AND CONCI L I AT I O N

47

and failing the assent by their employer, in quitting simultaneously, or, as it is called, going out on strike. And even though this may occasion the employer great loss and damage, unless some valid contract is thereby violated; or unless the strike is such as to amount to malicious injury to property; or is liable to cause loss of life; or is in furtherance of a conspiracy to injure or restrain trade, some of which acts involve only civil, others both civil and criminal liability. On the other hand, we think that public opinion, as well as that of those prominent in labour circles, emphatically condemns the sympathetic strike, the boycott, intimidation, the blacklist, and picketing as it is commonly practiced.72 The report went on to condemn strikes over the closed shop, invoking both the rights of workers to choose whether or not to belong to a trade union and the rights of employers to choose whom to employ. While it refused to recommend that recognition strikes be declared unlawful, it urged public authorities to ensure that no illegal or criminal methods were used in conducting them. The publication of ‘unfair’ or ‘scab’ lists was castigated as manifestly a breach of the peace that should attract specific sanction and the Gurney boycott was invoked as an example of such unacceptable activities. Within these narrow parameters, the Commission recommended that trade unionism should be protected and encouraged. It also suggested the incorporation of trade unions, a position advocated by the CMA, and a model constitution as a way of distinguishing between responsible and illegitimate organizations. It dismissed union objections that incorporation would simply expose unions to financial liability for the actions of their members on the ground that the liability for unincorporated associations had already been established in English law. In exchange for responsible behaviour on the part of trade unions, it recommended that it be an offence for employers to discriminate against workers on the basis of union membership.73 These recommendations were favourably received by employers and their organizations. The call to ban foreign organizers was taken up in the Senate even before the Commission released its report. James Lougheed, a senator from Alberta, introduced a bill which was designed to outlaw ‘the agitators who were coming into Canada to establish union and foment strikes’ by amending the Criminal Code. The Senate, which was mainly, if not exclusively, composed of government appointees selected from the ranks of business, passed the bill. But after organized labour launched a major campaign against

48

L ABOUR BEF ORE THE LAW

the bill, the House of Commons rejected it. This defeat did not deter members of the upper house, where repeated unsuccessful attempts to ban foreign union organizers were introduced. But by the end of the decade even the Senate had come to appreciate that the distinction between illegitimate and legitimate trade unions could not be drawn along national boundaries. By 1910 Senator Lougheed had undergone a change of heart; he advised that businessmen ‘had more to gain by appealing to the responsible organizations of an international character than if the strike in question had been simply instituted by a local, limited and largely irresponsible organization.’74 Like the ban of foreign organizers, few of the Commission’s recommendations ever became law. The ALU affiliates were never outlawed. After their defeat in the 1903 strikes such extreme action was simply not necessary, since organizing activities had been effectively curtailed for the time being. Nor were unions required to incorporate, although judicial decisions firmly established that trade union funds could be attacked via a representative action. Sympathy strikes, boycotts, picket-line activities, the epithet ‘scab’, and the closed shop continued to attract opprobrium from the courts when employers initiated civil actions or instigated criminal prosecutions. Thus, it was unnecessary for the federal government to act on this score. The federal government was equally hesitant about enacting laws to assist unions in their struggles against employers. Any legislation it introduced to help unions was defeated by the Senate.75 But while the majority of senators were obviously opposed to labour’s demands, at the very best, support in the House of Commons was lukewarm. Trade union demands for legislative protections against injunctions and civil actions were never acted on by the Laurier government. Strikes declined after 1903 and the federal government was content to limit its interventions to conciliation and investigation. The militia was called out in the context of a strike only once in 1904 and not at all in 1905. Given the decline in the both the level and degree of industrial conflict, it is not surprising that the federal government did not immediately act on the Commission’s recommendations. But although its influence was delayed, the normative framework developed by the Commission had a significant impact on federal labour policy. The period of relative peace on the labour front was short-lived. There was an increase in recourse to legal coercion by employers in 1906, despite the fact that the number of strikes had declined. Both criminal prosecutions and applications for injunctions increased.76 Unskilled workers, including garment workers, street railway employees,

COURTS AND CONCI L I AT I O N

49

labourers, printers, and coal miners, were prosecuted criminally, typically for picketing offences, while foundry workers and plumbers were both enjoined and subjected to criminal prosecutions for strikerelated activity. The use of military force also spiked dramatically, when the troops were called out four times in 1906 to deal with mass strikes by unskilled workers.77 The strike by 400 workers at the sawmill in Buckingham, Quebec, clearly illustrated the limits of the policy of voluntary conciliation. Violence escalated when the mill owner refused conciliation and instead used special police and detectives to bring in strikebreakers. When two strikers and one detective were killed and several other people on both sides were seriously injured, the mayor, who was also the mill manager, called in the militia, which was later replaced by regular troops.78 The year 1906 marked a turning point in both the nature of the strikes and the types of unions involved. Industrial unionism was expanding and catching hold in a range of sectors across Canada. Such unions began to establish a presence among the textile workers in Quebec and were becoming entrenched among the longshoremen in the eastern ports and the street railway workers. The UMWA branched out from its base in the Lethbridge and Crowsnest Pass coalfields to challenge the Provincial Workmen’s Association (PWA) in Cape Breton and to take up where the WFM left off on Vancouver Island. The WFM, which had decided to confine its organizing attempts to hardrock miners, was making headway in northern Ontario. The Industrial Workers of the World, established in 1905, embraced syndicalism as a political philosophy and departed from more traditional union structures by eschewing strike funds and adopting flexible membership entitlements for the masses of unskilled workers who passed through various forms of seasonal employment. The constituency of the industrial unions, as well as their tactics of mass and sympathy strikes, distinguished them from their more responsible craft counterparts. While some of these unions, such as the UMWA, were able to establish an entente with the TLC since they were affiliated with internationals that were members of the AFL, those embracing a syndicalist orientation rejected the concept of responsible unionism. Despite their diverse political philosophies, organizational structures, and strike tactics, industrial unions posed a challenge not only to the federal government’s policy of conciliation, but also to the norms of responsible unionism. In fashioning its response, the federal government drew upon the recommendations of the 1903 Royal Commission to flesh out its policy of compulsory conciliation.

50

L ABOUR BEF ORE THE LAW

The first strike wave of the Second Industrial Revolution stimulated the development and deployment of new legal institutions and interventions to deal with strikes. But injunctions and conciliation supplemented, rather than replaced, liberal voluntarism. A blend of accommodation and coercion came to characterize the emerging regime of industrial legality. These modalities of intervention were not alternative strategies for the resolution of industrial conflict in Canada; rather, they were intertwined and mutually reinforcing, with both material and ideological effects. The civil and criminal law provided specific legal weapons for employers that were instrumentally valuable in particular disputes, and judicial decisions presented a normative order of industrial legality. The normative dimensions of the federal government’s policy of conciliation were paramount. However, such intervention had little effect in cases where the dispute between the employer and its workers involved fundamental issues of control. And although the instrumental efficacy of deploying the militia was clearly the strongest suit of the aid to civil power, the fact that troops were called out by public authorities on the ground that public order needed to be preserved reinforced the norms of industrial legality.

3

Accommodation and Coercion: The Rise of Industrial Voluntarism, 1907–1914

The violent uprisings that led to the militia’s deployment in Buckingham, Kingston, Hamilton, and Winnipeg in 1906, together with the strike in Lethbridge, where Mackenzie King’s intervention forestalled the use of troops, convinced the federal government that coercion was not the best way of dealing with the rising tide of militancy by the industrial unions. Rudolph Lemieux, the Minister of Justice, identified the dilemma: True, a few strikes here and there in a large territory may be of little consequence for the time being, but as the country grows, as the area covered by these strikes increases, then the danger becomes greater and greater every day. The troops are called out, bitterness and class hatred is created and we find that after labour agitation, the country resembles a house divided against itself. The duties and obligations of citizenship are sometimes forgotten and the supreme authority of the state is ignored.1 Mandatory conciliation, as recommended by the 1903 Royal Commission, was the obvious solution. Yet, despite the federal government’s emphasis on conciliation and accommodation, class conflict, as measured by industrial disputes, remained an enduring feature of the Second Industrial Revolution. Strike activity ebbed and flowed with national economic conditions as well as with the pattern of regional development. There was a sharp surge in the number of strikes in 1907, which fell off the next year when the Canadian economy went into a tailspin. The number of strikes remained low until 1912, when another wave crested, subsiding in 1913. This wave was more national in scope than that of 51

52

L ABOUR BEF ORE THE LAW

1899–1903, as militancy shifted west, and it also included a greater proportion of unskilled workers. The number of strikes in construction, particularly by workers in camps, surpassed those in manufacturing, and strikes by garment workers and coal miners and on street railways were also prominent.2 Mandatory conciliation under the Industrial Disputes Investigation Act (IDIA) was simply one element, albeit a crucial one, in the legal regime that regulated industrial conflict between 1907 and 1914. The criminal law continued to be invoked in the course of industrial disputes, and as a result the judiciary continued to play a prominent role in articulating and enforcing the norms of industrial legality. The courts’ injunction-granting power was less frequently called upon by employers after 1907, but when it was, the judiciary reaffirmed its commitment to the contours of responsible unionism limned in earlier decisions. In their capacity as chairmen of boards of conciliation appointed under the IDIA, members of the bench had another forum in which to shape and disseminate the norms of industrial legality. Although the judiciary’s role under the Act was predominantly exhortatory, on the few occasions when either employers or workers sought to invoke the coercive apparatus of the legislation, judges could impose their vision of industrial legality. Magistrates also continued to be involved in the deployment of military force in industrial disputes when local elected officials refused to accede to an employer’s request for military assistance to keep the peace. Local officials and police forces could contain small strikes, but unrest by masses of unskilled workers exceeded their capacities. When strikes occurred in sectors that were crucial for regional economies, provincial governments would use force—with dire consequences for the striking workers and their unions. In the first two years of operation of the IDIA, the militia was not deployed to resolve a labour dispute. But this did not signal the triumph of accommodation. Between 1909 and 1914 the militia was sent in on 10 occasions to restore labour peace (Table 2). Intervention ranged from a short, sharp shock that quickly restored civil order to what was in effect a prolonged armed occupation of coal-mining communities. In eight of the strikes where the militia or military was called out, the dispute was covered by the Industrial Disputes Investigation Act, and in six of them its mechanisms were invoked.3 But despite its continuing significance, massive state coercion in strikes was the exception rather than the rule. Conciliations under the Act far outnumbered military interventions as the technique for containing industrial unrest, although their application was uneven.

ACCOM M ODATI ON AND CO E R C I O N

53

Table 2 Militia Interventions in Strikes, 1909–1914 Year

Springhill, NS

1909 coal miners

Yes

Yes

Glace Bay, NS

1909 coal miners

Yes

Yes

Inverness, NS

1909 coal miners

Yes

No

Southern Ontario

1910 railway running trades

Yes

Yes

Sault Ste Marie, Ont. 1910 steelworkers

No

No

Prince Rupert, BC

1911 building labourers

No

No

Vancouver Island

1913 coal miners

Yes

No

Halifax

1913 street railway workers

Yes

Yes

Port Arthur, Ont.

1913 street railway workers

Yes

Yes

Saint John, NB

1913 street railway workers

Yes

Yes

SOURCE:

Type of Workers

IDIA IDIA Coverage Invoked

Place

Labour Gazette.

Recourse to the mechanisms provided by the IDIA was not required in a great number of sectors where strikes occurred, and even where it was required it was often ignored. Nonetheless, the IDIA played an important role, both instrumentally and ideologically, in shaping the contours of industrial conflict. The institutional complexity of the legal regime increased its flexibility to respond to the different forms of industrial conflict during the later part of the Second Industrial Revolution. Although the regime could be triggered by a variety of state agents in response to a particular dispute, typically it was invoked by the parties. Consequently, how it operated depended on the specific features of the social relations of production in a given industry and region. But, as we shall see, despite the different modalities of state intervention, promoting responsible unionism continued to be the goal of the law.

Compulsory Conciliation in Theory and Practice The UMWA strike in the Lethbridge coalfields in March 1906 was the immediate trigger for the federal government’s decision to intervene more actively in industrial disputes. King was dispatched by the

54

L ABOUR BEF ORE THE LAW

federal government to mediate the dispute, even though Frank Sherman, the leader of UMWA’s District 18, refused to accept conciliation. Armed with the threat of military intervention, King met with John Mitchell, the president of the entire UMWA, in Minneapolis, and persuaded him to give up the demand for a closed shop. Having secured this compromise, King was able to persuade the employer to accept a tactical retreat. Consequently, the settlement included a ‘non-discrimination’ clause, a grievance mechanism, and wage parity in the mines throughout the region.4 In his official report, King drew a number of conclusions from his involvement in the strike. According to him, ‘in any civilized community private rights should cease when they become public wrongs.’ The threatened fuel famine (which was highly exaggerated) elevated the strike beyond a local dispute, thereby justifying state intervention. The particular form King advocated reflected the recommendations of the 1903 Royal Commission, to which he was secretary; it included a compulsory ban on the use of strikes or lockouts while a board investigated a dispute and issued its report.5 Less than one month after his return from Lethbridge, King completed a draft bill that was introduced by Rudolph Lemieux (who was responsible for the Labour portfolio until King took over as the first full-fledged Minister of Labour in 1909) in the House of Commons on 17 December 1906. The Industrial Disputes Investigation Act, which received royal assent on 22 March 1907, embodied several features of the Railway Labour Disputes Act, but its scope was broader as it applied to disputes in public utilities and industries, such as coalmining and railways, that were key to the national economy.6 The most important new feature of the IDIA was the prohibition against industrial action during investigation by a conciliation board. Persons engaging in industrial action prior to or during the reference of a dispute to a conciliation board were subject to prosecution summarily under the Criminal Code. Fines of between $100 and $1,000 for each day that an employer declared or caused a lockout and between $50 and $100 for each day that an employee was on strike were provided. In addition, the Act created an offence for trade unions to call their membership out on strike without either initiating or completing the process of conciliation and investigation. This reliance on criminal sanctions, as opposed to civil remedies, emphasized the public interest nature of the legislation. The compulsory cooling-off provision was coupled to a guarantee of the status quo until after the board reported, the purpose of which was indirectly to compel the party seeking changes in the terms and

ACCOM M ODATI ON AND CO E R C I O N

55

William Lyon Mackenzie King (left), Canada’s first Deputy Minister of Labour and Minister of Labour, put his industrial relations theory into practice while consulting for the American tycoon John D. Rockefeller, Jr, in 1915. (National Archives of Canada, C25281.)

56

L ABOUR BEF ORE THE LAW

conditions of employment to apply for conciliation in order lawfully to resort to industrial sanctions. But unlike the prohibition on untimely strikes and lockouts, there were no sanctions backing the status quo provision. Hence, employers were de facto free unilaterally to change the conditions of employment, forcing employees either to apply for conciliation or to engage in an illegal strike in retaliation. J.B. McLachlan, a UMWA organizer in the Nova Scotia coalfields, characterized the effect of the Act for his members: On and after the 22nd day of March 1907 you shall not start any fight till you give your master thirty days to entrench himself, during which time you shall hand to your master your gun and cartridge pouch, which your master shall empty at his leisure after which you can have your gun and pouch and the battle can proceed.7 In Parliament, Lemieux declared that the spirit of the law was that there were to be no strikes without investigation. But, in practice, the administration of the IDIA stressed conciliation and mediation, not coercion and publicity. Despite the provision of criminal sanctions to force the parties to conciliation before embarking on industrial action, it was the policy of successive labour ministers not to initiate prosecutions. Instead, the use of coercion under the Act was left to the parties. Even then, resort to criminal prosecution was rare, although it could be decisive in a particular dispute because strike leaders were most often the target. The IDIA was consistent with the federal government’s policy of not directly intervening in a labour dispute, but, instead, of providing a legal infrastructure that could be invoked by the parties.8 The official rationale for the IDIA was that the publication of the board’s report would place the issues in dispute before the general public and thus enlightened public opinion would be brought to bear on the parties. Publicity was downplayed, however, and active mediation was stressed. In fact, the practice quickly developed of sending in a Department of Labour conciliation officer even before a conciliation board was appointed. The brand of conciliation employed by several influential chairmen was similar to King’s interventions under the Conciliation Act. Adam Shortt, who sat as chairman of 12 conciliation boards during the first two years of the Act’s operation, eschewed publicity in favour of conciliation, going so far as to prohibit the presence of newspaper reporters at hearings so as not to undermine the parties’ willingness to compromise. He also rejected legalistic techniques and courtroom procedures for voluntarism and

ACCOM M ODATI ON AND CO E R C I O N

57

private negotiation, evaluating disputes on the basis of the complexity and ambiguity of the issues involved rather than on legal or moral grounds.9 Shortt’s emphasis on conciliation at the expense of publicity was adopted by the majority of conciliation boards under the IDIA. The primary concern of boards was to win the confidence of the parties to the dispute, not to inform the general public. Some boards deliberately refrained from recording evidence so as not to prolong bitterness once the dispute was settled. Moreover, the reports were brief, stressing the technical matters in dispute rather than the broader issues that led to the unrest. While a few reports were summarized in newspapers, the only systematic outlet for them was the Labour Gazette.10 The application of the Industrial Disputes Investigation Act was compulsory with respect to disputes in public utilities—industries seen as essential to the Canadian economy such as mines, agencies of transportation and communication (e.g., steam and electric railways, steamships, telegraph and telephone lines), and gas, electric, and power works. The federal government claimed that its jurisdiction over disputes in public utilities derived from its residual authority to legislate for the peace, order, and good government of Canada. Disputes in coal-mining, railways, and utilities accounted for approximately 60 per cent of the occasions in which compulsory conciliation was deployed between 1907 and 1914. If both parties to a dispute agreed, it could be invoked in other industries. Voluntary recourse to the IDIA machinery was rare; between 22 March 1907 and 31 March 1912 only four disputes, all from Quebec, which had a history of conciliation and arbitration under ecclesiastical authority, were referred to it.11 Workers in sectors where recourse to conciliation under the IDIA was mandatory as a condition for lawful strike action had four options for resolving a dispute: foreswear strike activity altogether and apply for a board; strike and then apply for conciliation; use conciliation, then strike; and ignore conciliation altogether in favour of industrial action. The selection of a particular option was less the consequence of a prearranged strategy than the result of incremental decisions towards a larger goal. Of the 252 strikes between 1907 and 1914 that were covered by the Act, just over half of them were technically illegal under it. In the vast majority of disputes in which conciliation occurred, it was requested by the employees and strike action was avoided. In the 10 per cent of cases where the employer requested conciliation, labour tended to be more successful than

58

L ABOUR BEF ORE THE LAW

when it invoked conciliation or struck. Labour did worse when conciliation was followed by a strike, suggesting that conciliation was most frequently sought by the weaker party in the dispute. But whatever strategy labour selected, unambiguous victories were always a small proportion of the outcomes of disputes. On the basis of his comprehensive analysis of the operation of the IDIA between 1907 and 1914, Bob Russell found that labour was most often successful when it could force negotiation without the aid of state intervention. Conciliation was a strategic choice for unions when they were confronted by employers who refused to recognize them, but it was only second best to having the power to force direct negotiations.12 To lend an aura of neutrality and, hence, legitimacy to the reports, the IDIA was structured to emphasize party representation and independence from the Department of Labour in both the composition and practice of the board. Despite this, unionists complained that, in practice, the reports were ‘loaded’ in favour of the employer: The very personnel of the boards are against the interests of the workers. The chairman casts the deciding vote on these boards. In 99 out of 100 cases, the two members appointed by the employers and the men cannot agree upon a mutually suitable person. The Minister of Labour has to choose him, and he usually selects a judge or some professional man whose point of view is capitalistic and who has no sympathy for the working class. As a result, from the very beginning the chances are against getting a favourable decision for the workers. The chairman almost invariably lines up with the representative of the employer.13 A quasi-professional core of conciliation board members soon emerged. By far the most frequently appointed chairman during the first two years of the Act’s operation was Adam Shortt. There was also a high proportion of judges who served in this role on a repeat basis. Moreover, both unions and employers tended to select a particular representative to act on numerous boards, and many of them, especially those nominated by employers, were members of the legal profession.14 Although the instrumental impact of conciliation was equivocal, the reports provided a template of legitimate demands and acceptable conduct that was publicized in the Labour Gazette. From the outset, conciliation reports manifested a comprehensive justificatory framework. General criteria or principles purported to reconcile the justifications advanced by employers and employees in support of their bargaining positions. Recommendations tended to be ‘phrased in

ACCOM M ODATI ON AND CO E R C I O N

59

terms of industrial morality: the basic structure was accepted and the employer’s legal rights were given; boards merely suggested how those rights should be exercised.’15 Moreover, parties tended to adopt the justificatory rhetoric of the boards, and boards, in turn, selectively appropriated parties’ arguments in particular disputes. In resolving disputes over wages, the boards deployed a number of principles. Essentially, workers’ need for a living wage was balanced against the state of the industry and the employer’s ability to pay, as well as wages paid by competitors. These general concepts, which also included reference to a fair day’s work, the cost of living, and supply and demand in the labour market, provided boards with a great deal of flexibility in recommending a particular settlement. However, according to Jeremy Webber, a basic paradigm emerged in which ‘employers remained masters of their enterprise, obligated to provide a decent living to their employees, but not to share the prerogatives of property.’ In general, boards’ recommendations concerning wages tended to reflect existing economic conditions.16 Recommendations in regard to trade union representation emphasized employers’ proprietary rights and freedom to contract, and employee committees, which had been favoured by King in his interventions under the Conciliation Act, effectively became the compromise for resolving recognition disputes. Like King, Shortt, who advocated the incorporation of trade unions, was not convinced of the need for, or legitimacy of, trade unions, believing that employee committees could adequately address workers’ need for representation. Overwhelmingly, boards accepted employers’ concerns that they not have to deal with outsiders, that is, union officers, on employee committees. And although they were unanimous that employees should be free to join unions without suffering discrimination, they rarely found that an employee had been discharged simply on account of trade union membership. Boards consistently endorsed an employer’s right to manage its enterprise, which included the discharge and discipline of employees. And, with rare exceptions, boards refused to endorse a union’s demand for a closed shop. In fact, G.M. Murray, the secretary of the Canadian Manufacturers’ Association, claimed that the IDIA ‘compelled unions to abandon the principle of the closed shop.’17 Consistent with their acceptance of the principle of the individual employee’s right to join the trade union of his choice, boards rarely condemned specific unions. The only exceptions to this general practice occurred in 1909. On three occasions, District 26 of the UMWA, which was attempting to displace the Provincial Workmen’s Association in the Nova Scotia coalfields, was condemned for engaging in

60

L ABOUR BEF ORE THE LAW

sympathy strikes, its ‘foreign domination’, and its general subversive behaviour. In a fourth instance, the WFM, which had earlier been criticized by King as unwilling to compromise and by the 1903 Royal Commission as ‘socialist agitators of the worst sort’, was castigated by the conciliation board when it attempted to gain recognition from the British Columbia Copper Co. in Greenwood.18 Predictably, employers and trade unions were divided both internally and along broader class lines in their official positions on the value of the IDIA. However, the stance of specific employers and unions had little to do with either their willingness to invoke the legislation or the principles shaping board recommendations. Instead, the diversity of responses was a function of the social relations of production that shaped the parties’ experience of the legislation. Although there was some disagreement within employer ranks over the federal government’s policy of compulsory conciliation, by and large most employers favoured it. The CMA’s official stance was to support the Act, despite the fact that it did not apply to the vast majority of disputes involving its members. Its major complaint was that the Act did not in fact prevent strikes, and it identified the inadequate punitive provisions of the legislation as a shortcoming. Coal operators, who experienced the largest proportion of illegal strikes under the IDIA, supported the principle behind the legislation, but they shared the CMA’s concern that the penal provisions were not being enforced against employees who struck in violation of the legislation’s cooling-off period. The railway companies supported the Act because it helped to dissuade railway unions from taking precipitous strike action.19 Unions were much more divided than employers in their official position on the value of the IDIA and their stance changed over time. Despite the initial plausibility of explanations of trade unions’ divergence either in terms of region (eastern unions supported the legislation, while those in the West opposed it) or political orientation (conservative craft unions endorsed it, while syndicalist and socialist unions opposed it), the story is more complex. Responsible craft unions were as likely to reject the policy of compulsory conciliation as support it. Generally, organized labour’s view of the Act varied in tempo with the cycles of the economy—during recessions the unions tended to support it, while in prosperous times they found it a fetter —and in relation to judicial decisions that were unfavourable to labour. Moreover, unions opposed to the IDIA were willing to invoke it for tactical reasons in a particular dispute. In 1908, the members of TLC executive attempted to broker broader support for the federal

ACCOM M ODATI ON AND CO E R C I O N

61

government’s policy by securing amendments to the Act in exchange for providing political support to King, who was running for Parliament. But employer intransigence to trade union recognition, facilitated by delays in the administration of the legislation and anti-union judicial interpretations, culminated in 1911 to undermine support for the Liberal’s labour policy and its principal architect. At its annual convention in 1911, the TLC unanimously endorsed a resolution calling for the repeal of the Industrial Disputes Investigation Act.20 The Limits of Respectability: The Operation of Industrial Legality on the Railways Since the railways provided the fundamental instrument of commercial and political integration in Canada, ensuring their continuous operation and expansion was a critical concern for the federal government. But the problem was that this required the government to pursue what were contradictory objectives: ensuring industrial peace while simultaneously providing a constant, and growing, supply of cheap labour. Closely integrated with the mining companies in the West, between 1906 and 1907 the transcontinental railways intensified their demands for an open-door immigration policy that would provide them not only with the masses of strikebreakers needed to discipline unions brazen enough to resist their autocratic rule, but the tens of thousands of workers needed to build the vast transportation infrastructure and to extract Canada’s natural resources. The railways’ insatiable demand for a cheap and tractable labour force resulted in conflict on two related fronts, which the Liberal government was ultimately unable to mediate. Politically, conflict over the corporate desire for unlimited immigration extended beyond workers and their organizations, which called for restrictions on the use of imported strikebreakers, to the majority of the electorate in British Columbia, who were preoccupied with keeping the province white. When a mass meeting of the Vancouver Asiatic Exclusion League exploded in a riot in September 1907 in which white mobs swept through Chinese and Japanese neighbourhoods, destroying property and assaulting residents, Laurier responded by, among other things, appointing King to head a Royal Commission. Political expediency persuaded Laurier to adopt King’s proposal for calming violent nativist sentiment by imposing restrictions on Oriental and ‘Hindu’ immigration.21 This forced the Canadian railway companies, along with other leading corporate resource interests, to turn to southern and eastern

62

L ABOUR BEF ORE THE LAW

Europe as the key sources of workers for their immense construction projects. While opposition to foreign navvies was neither as virulent nor as violent as that directed against Oriental immigrants, in general, the respectable classes of Anglo-Canadian society, which included skilled workers in craft unions, considered them to be little more than ‘professional vagrants’ whose habits and attitudes were ‘repugnant to Canadian ideals’.22 Laurier’s failure to meet the demands of the powerful railway companies for an open-door immigration policy to fuel corporate expansion and capital accumulation and the increasingly vociferous nativist and racist demands of the electorate shook the government. In the 1908 federal election, the Liberals lost five out of the seven seats they had previously held in British Columbia. At the point of production, conflict took a variety of forms, ranging from union-sanctioned strikes through violent riots, and the state’s response was similarly diverse, involving conciliatory attempts at accommodation as well as outright military coercion. The modality of intervention deployed in a particular dispute depended on the form the conflict took and the types of workers involved. Skill, which was inscribed with ethnicity and highly racialized, was the basis of labour market hierarchy on the railways. This, in turn, shaped the workers’ choice of tactics, influenced their bargaining power, shaped the employers’ responses, and was a factor that helped to determine the form of state intervention. At the top of the hierarchy of railway workers were the skilled running trades, represented by the American-based brotherhoods, who had long-established and deep-rooted traditions of ‘manly’ and responsible craft unionism. Confronting powerful and often intransigent employers, these workers, the vast majority of whom were of Anglo descent, attempted to establish stable collective bargaining relations by narrowly focusing their organizational and bargaining efforts on preserving and promoting their specific skills. They showed little sympathy for their fellow railway workers.23 The railway running trades unions were most likely to invoke conciliation rather than to engage in strike action.24 In the only strike by the running trades during the first years of the IDIA—that by the Order of Railway Conductors (ORC) and Brotherhood of Railway Trainmen (BRT) against the Grand Trunk Railway (GTR) in 1910—conciliation did not assist the trade union. The international leadership of the brotherhoods insisted that the Canadian officers respect the IDIA process. Although initially both the union and the employer rejected the conciliation board’s recommendations, when faced with a strike C.M. Hays, the Grand Trunk’s obdurate and authoritarian president,

ACCOM M ODATI ON AND CO E R C I O N

63

proposed a settlement along the lines the board suggested. But it was spurned by the unions, since they did not trust Hays to implement wage increases once the trains were running.25 On 18 July, the unions struck, pulling out about 3,500 conductors and trainmen across the GTR’s eastern line. The strike committee was determined to minimize violence; strikers were ordered to stay away from company property and picketing was confined to a few observers, dressed in their Sunday best, stationed well away from company property and instructed merely to keep track of strikebreakers. The GTR offered pensioners, dismissed conductors and trainmen, and laidoff shop workers the jobs of the striking running trades workers; handbills recruiting strikebreakers were distributed and advertisements were placed in daily newspapers. But when the company sought to use some of the large reserve of unemployed American railway workers, King instructed the Immigration Department to make no exception to immigration regulations during the strike. The running trades’ unions enjoyed some moderate success in prosecuting the company for violating the Alien Labour Act.26 The GTR posted security guards at stations and depots and section men were ordered to patrol the line. The Thiel detective agency was retained and the company posted notices at its stations warning that ‘trespassers’ would be prosecuted. Large crowds, composed of strikers and their friends and sympathizers, met incoming trains at Brockville and Sherbrooke, and similar sorts of disturbances were reported at Flint, Toronto, Clinton, Island Pond, Battle Creek, South Bend, and other points along the Grand Trunk line. On at least one occasion the deputy attorney general refused a mayor’s request for assistance in protecting the GTR’s employees and property on the ground that he could call in the militia or invoke the Criminal Code if necessary. In Brockville, the mayor, having initially refused to appoint special constables to assist the GTR in its strikebreaking activities, later called in the militia to deal with a riot that began after a Thiel detective fired a shot into a crowd of strike sympathizers. After Brockville, local authorities supported the GTR’s requests for troops and detachments were deployed to protect GTR property in Toronto and London, where they remained until the strike ended. The only death related to the strike happened outside Canada, when a railway detective shot into a crowd at South Bend, Indiana, killing a demonstrator. There is no evidence that any of the GTR employees or detectives who were engaged in strikebreaking were ever prosecuted. However, strike sympathizers were arrested and convicted.27

64

L ABOUR BEF ORE THE LAW

Behind the scenes, King, joined by Borden, the Minister responsible for the Militia, pressured Hays to compromise. The international presidents of the two brotherhoods stepped in to take over negotiations and they endorsed the IDIA board’s recommendations as a basis for a settlement. King acted as their intermediary with Hays, who refused to take striking workers back into his employ and to reinstate their pension plans. Ultimately, King was able to broker a settlement to the two-week strike; in exchange for the company’s secret acceptance of a reinstatement clause, the government guaranteed employment for any strikebreakers still on the GTR payroll after the strikers returned to work. Despite the brotherhoods’ claim that the strike was victorious, it ended up being disastrous for them. Individual strikers found themselves completely at the mercy of a management that refused to honour the reinstatement clause and stripped those who struck of their pension rights. Laurier refused to appoint a Royal Commission to investigate Hays’s failure to abide by the settlement, although he managed to persuade him of the need to appoint an independent judge to determine whether individual strikers should be reinstated. Later, the company simply ignored Judge Barron’s report that the majority of men whose cases he had investigated should be reinstated. When the two Canadian vice-presidents of the unions attempted to have the reinstatement problem investigated under the IDIA, they were unable to obtain sufficient support from their members to apply for a board.28 The debacle of the GTR strike demonstrated the one-sided nature of the federal government’s policy of class accommodation. Having secured a compromise from the unions, the government’s unwillingness to interfere with the railway company’s prerogatives meant that the GTR did not have to budge from its intransigent position. The strike also demonstrated that even respectable workers faced huge penalties—the loss of their jobs and their pensions—if they dared to withdraw their labour power collectively. Little wonder the running trade unions avoided engaging in strikes against the powerful intercontinental railways. Faced with an employer who had little concern for public opinion and who refused to be cajoled by the government, conciliation under the Industrial Disputes Investigation Act did not assist trade unions. Conciliation did nothing to restrict the railway companies’ ability to use strikebreakers against workers who chose to exercise their privilege to engage in collective action. The shopcraft workers, the next echelon in the railway workforce, fared little better than their

ACCOM M ODATI ON AND CO E R C I O N

65

counterparts in the running trades. The Alien Labour Act also failed to provide much assistance to unions. In the 1908 shopcraft strike on the CPR line from Montreal to Vancouver, the criminal law was used, albeit sparingly, to discipline strikers and their leaders who interfered with strikebreakers. The 8,000 striking men returned to work on terms they had already rejected. Individual strikers also paid dearly for their brief rebellion, losing seniority rights and pension entitlements on account of the strike.29 Skilled railway workers rarely went on strike, and when they did, they rarely won. In this context, conciliation was a mechanism that assisted negotiations, although it was invariably the unions that compromised. Class accommodation was achieved for skilled railway workers, but this was clearly based on the craft unions’ acceptance of labour’s subordination to managerial prerogatives. Unskilled workers had an even more difficult challenge, since employers were not even prepared to recognize their collective voice. When they struck the railway companies or their agents, accommodation gave way to coercion. Anglo-Canadian popular opinion also supported the deployment of state violence against dangerous foreigners. Despite the efforts of federal officials, conciliation was infrequently invoked, and when it was, it was not very successful at forging compromise. Recent immigrants, who were increasingly from southern and eastern Europe, provided the backbone of the bottom tiers of railway labour, performing seasonal, insecure, and heavy physical work. The railways explicitly avoided hiring British immigrants to work in the construction camps, correctly fearing that they would not tolerate the harsh working and living conditions and would use their access to the English-language press to express their grievances and gain broader public sympathy. Slavic and Italian navvies were their preferred recruits and the railways relied on labour agents and contractors to provide the thousands of men they needed. Moreover, the railways tended to favour Italian immigrants. As the CPR’s employment agent put it: ‘Italians are the only class of labour we can employ who can live for a year on the wages they earn in six months . . . if we have the Italians . . . there is no danger of their jumping their jobs and leaving us in the lurch.’30 The strikes by freight handlers provide the starkest example of the failure of the federal government’s policy of accommodation to control labour conflict. Between 1907 and 1916, this group of workers engaged in 16 strikes, only four of which involved conciliation boards, and then only after the strikes had begun.31 Several of these strikes are remarkable for the extent of violence involved. Gun battles

66

L ABOUR BEF ORE THE LAW

were fought during the freight handlers’ strikes in Owen Sound in 1908, Fort William in 1909, and Port Arthur in 1912 and the militia was called out in each of them. While the popular press and military authorities blamed the violence on the temperament of the predominantly southern European workforce, federal officials, including King, attributed it to the failure of the workers to invoke the IDIA before striking. However, almost invariably it was the railway companies’, most notably the CPR’s, deployment of armed force and strikebreakers that provoked violence.32 Fort William (the location of the start of the CPR’s western line) and Port Arthur (housing the Canadian Northern Railway’s terminus on the Great Lakes) experienced the majority of freight strikes. The predominant nationality of the freight handlers was Italian. The railway companies used a number of tactics to control the workforce, of which the concerted use of strikebreakers was the most crucial. Moreover, they consciously exploited ethnic divisions between workers by recruiting strikebreakers of national origins different from the men on strike. Most of the freight handlers’ strikes were spontaneous affairs in which the workers collectively withdrew their labour to protest wage reductions, demand wage increases, challenge the bonus system, or grieve the high-handed treatment they received from foremen. Pickets were established to dissuade strikebreakers and processions were organized to express their demands. While the occasional altercation flared up on picket lines, wholesale violence only occurred when the railways mobilized a mass display of force. Strikes in which either the railway did not deploy strikebreakers or the strikers were able to persuade the scabs to join their cause did not result in violence. On the whole, local public authorities initially attempted to mediate disputes even after strikes began. In the Fort William strikes, the mayor preferred to act as a conciliator and refused the CPR’s request to read the Riot Act. However, such officials could do little to control a railway company intent on breaking the strike through a public display of armed force. When such tactics invariably resulted in riots by enraged strikers, the Riot Act was read and the militia was called in. Once the troops arrived, violence ended and peace was restored. However, this did not mean that production resumed. On several occasions the strikers were persuaded to call for conciliation under the IDIA to achieve a settlement.33 Conciliation functioned more as a device for ending, rather than avoiding, unrest, since it was never invoked before a strike began. But striking freight handlers had little cause for confidence in such intervention. While boards often

ACCOM M ODATI ON AND CO E R C I O N

67

supported the strikers’ demands, they were never able to establish a basis for lasting labour peace since the railway companies refused to compromise. In the 1909 Fort William strike, for example, the strikers treated the conciliation board’s recommendations for a wage increase and the abolition of the hated bonus system as a victory, especially after the CPR took back all of the men, including the Greeks against whom it had earlier announced a permanent ban. However, when the next shipping season commenced, the CPR declared that it would employ at its sheds neither Greeks or Italians, the two groups most visibly identified with the strike. The effect of conciliation was to end the strike during the peak of shipping season, the only time the freight handlers had any power, and thus allow the CPR time to regroup.34 Although public authorities occasionally attributed the outbreak of violence to the provocative actions of the railway companies, they never initiated prosecutions against them or their agents. In fact, on the one occasion in which private prosecutions were lodged against railway constables, the deputy attorney general instructed the Crown attorney to withdraw them.35 By contrast, charges were frequently pursued against striking workers, mostly for rioting and unlawful assembly.36 The most egregious example was the prosecution and subsequent conviction of the Deprenzo brothers, who had both been seriously wounded by police bullets in the 1912 Port Arthur strike. One brother was charged with attempting to murder the police chief, while the other was charged with assaulting a constable. A newspaper account of the trial captured the presiding judge’s view of ‘dangerous foreigners’, a view that resonated with popular Anglo opinion: The point that he emphasized was that those foreigners must not be led to believe that they can take the law in their own hands, throwing aside the measures provided by civilized society for the punishment of crime. If this condition was once allowed civilization would descend to barbarism. . . . The point that must be brought home to these people was that violence in any form will not be tolerated in this country regardless of any customs or usages prevailing in Russia, Finland, Italy or whatever country the foreign element comes from. The jury recommended that the charge of attempted murder be dropped, but found the Deprenzos guilty of resisting arrest and unlawfully wounding. Treating the pair as examples to teach foreigners respect for the law, Justice William E. Middleton sentenced each of the brothers to a prison term of 10 years at Stoney Mountain

68

L ABOUR BEF ORE THE LAW

Penitentiary. Foreign navvies learned that the quality of mercy in ‘British’ law did not apply to them.37 Railway construction camp workers, like their brothers who hauled freight, derived little benefit from the federal government’s policy of class accommodation. In the confrontations between blanket stiffs and the labour contractors in the West between 1911 and 1913, every level and institution of the Canadian state, from the federal government down to municipal authorities and police magistrates, actively assisted employers in coercively disciplining their increasingly recalcitrant workforce. Local authorities and residents feared that these itinerant foreign workers would become public charges when they left the construction camps, draining municipal resources and introducing an unstable and unwelcome element into otherwise cohesive communities. Civic administrations thus adopted harsh policies to control the unemployed, either charging them with vagrancy or shipping them out of town without the benefit of a court appearance. Neither the federal government nor the British Columbia government was prepared to tolerate the Industrial Workers of the World, which embraced an incipient brand of socialism and organized the thousands of immigrant workers in the vast camps during the railway construction boom that peaked between 1910 and 1912. The federal government, under both Laurier and Borden, regarded the completion of the Grand Trunk Pacific and Canadian Northern Railway lines in the West as critical to their policy of national development and thus acceded to the demands of the railway companies for a vast supply of cheap labour. Between 1910 and 1913, the Immigration Department relaxed regulations pertaining to the immigration of navvies, restricted the entry of union organizers, including Bill Hayward, the notorious IWW president, to specific regions, assisted in the deportation of undesirables, and facilitated the importation of strikebreakers. In marked contrast to its actions in the freight handlers’ strikes, the federal government refused the IWW’s request to appoint a conciliation board under the IDIA. The British Columbia government, despite the fact that provincial police reports confirmed that the level of disorderly conduct and violence declined during the 1912 IWW strike, unleashed a concerted campaign of repression to drive the Wobblies out of the province.38 Although Premier Richard McBride rejected the contractors’ demand that the militia be sent in to crush the construction camp strike, he and his Attorney General, William Bowser, acceded to their request for special constables and encouraged them to employ large numbers of detectives to guard the strikebreakers. The Vancouver Sun

ACCOM M ODATI ON AND CO E R C I O N

69

began a vitriolic editorial campaign against the IWW, declaring that ‘the whole movement represents an invasion of the most despicable scum of humanity. . . . The government must show its strength and drive these people out of the country even if the use of force is required to do so.’39 Bolstered by public opinion, Bowser instructed the police superintendent that it was time to prosecute and imprison the Wobblies on every possible occasion. Police began to raid the camps, and when the strikers refused the Attorney General’s order to return to work, their camps were torn down, IWW halls were closed, and the men were either arrested or driven out of the strike zone. By June, between 250 and 300 Wobblies were in BC jails, serving sentences from three to 12 months for crimes of vagrancy, unlawful assembly, intimidation, and conspiracy. A New Westminster judge warned Wobblies against preaching their doctrines because Canadians ‘are a free and law-abiding people, and above all will not tolerate the red flag of anarchy.’40 The construction camp strikes organized by the IWW elevated the coercive response of the state to a new level. Not only did the Borden government refuse to allow the strikers access to conciliation to settle the dispute, it surpassed the previous Liberal government in using immigration powers to assist the railway companies and their construction contractors. The power of deportation was exercised to help rid British Columbia of the Wobbly menace, a practice that increased during the widespread unrest at the end of World War I. The selective use of immigration powers was justified on the ground that the sinister organization known as the IWW, like its predecessor, the ALU, was not a legitimate trade union at all. According to the CMA, ‘Syndicalists do not represent trade unionism. They are those revolutionary, criminal and idle adherents to trade unionism who would pervert the entire body which they disgrace. At best, they form a small percentage of workers, the majority of whom are decent men, careful of life and property.’41 Accommodation was reserved only for responsible unions. Containing Class Conflict in the Coal Mines The application of the IDIA was even more ambiguous in coal-mining disputes than it was on the railways. As a device for avoiding strikes it was an abject failure. The intensity, magnitude, and duration of industrial conflict in coal-mining surpassed that of any other industry. While the federal legislation was often invoked by coal miners, typically they waited until after a strike was called. Moreover, the experience and effect of conciliation differed sharply in different disputes, even when the same union was involved. In the Lethbridge and

70

L ABOUR BEF ORE THE LAW

Crowsnest coalfields, the UMWA used the Act to hedge its bets in the event that striking did not break an impasse in negotiations. There the UMWA was quite successful, achieving either a victory or a compromise in a majority of the disputes in which it was involved. However, its experience of the industrial disputes legislation was profoundly different in the coalfields of Nova Scotia, where conciliation had a coercive edge. Several boards condemned the UMWA, and the legislation’s punitive apparatus was deployed against the strike leaders. Its rival, the established but declining Provincial Workmen’s Association, benefited from federal conciliation in the short term, but even this failed to prevent the union’s slow demise. In the Vancouver Island coalfields conciliation was utterly irrelevant. As in the East, repression was used to keep the UMWA out of the coal mines, but in British Columbia there was not even a rival union to console the miners.42 That coercion was the predominant state response in the coal strikes of Nova Scotia and on Vancouver Island is not surprising, given the existence of a small group of large and politically powerful employers in both places. Not only did provincial economies depend on coal production, provincial governments treated the large coal concerns as preferred clients. In disruptive strikes by disreputable unions, provincial authorities assisted employers by providing the mass force needed to protect strikebreakers in coal towns.43 In Alberta, by contrast, the provincial government took a hands-off approach when employers called for assistance in coal strikes. Internally divided and with much less political sway, the Alberta coal operators engaged in several significant skirmishes with the UMWA, but the level of conflict never reached that of the intense confrontations that shook the coalfields to the east and west. Despite the UMWA’s criticisms of its limitations, conciliation helped to maintain an uneasy accommodation between the union and the coal operators in southern Alberta.44 The UMWA during this period was the best example of the new form of union beginning to emerge in the Second Industrial Revolution—the responsible industrial kind. Its goal was to take wages out of competition by organizing coal miners on an industry-wide basis. To do so, it had to overcome the linguistic differences and ethnic barriers of the diverse coalfield workforce. The UMWA offered employers labour stability in exchange for recognition; once it signed a collective agreement it agreed to be bound by its terms and to resolve disputes without resorting to strikes. When it was time to renegotiate the agreement and a strike was necessary, the UMWA members could turn to the large international strike fund. The check-off of union dues

ACCOM M ODATI ON AND CO E R C I O N

71

from workers’ wages was crucial for the union’s survival. If the membership was large enough, working miners could finance their brothers’ strikes. And through its control over the strike fund, the international union executive had a great deal of influence over the conduct of particular strikes. In many respects the UMWA epitomized King’s vision of responsible unionism. His experience of the 1906 Lethbridge dispute convinced him that the international union was prepared to compromise so long as the employer was willing to concede some form of recognition. The UMWA obtained the company’s undertaking to deduct and remit the dues of any miner who informed it of this desire. The next year it tested the legal legacy of the Lethbridge strike when it tried to get an agreement with the Western Coal Operators, a newly formed organization representing both independent mines and those under CPR control, on terms similar to those it secured in 1906. Federal involvement, even though a strike was not avoided, helped to bring the work stoppage to a quick end. King’s efforts to secure a settlement, which included a check-off, dispute settlement procedure, and wage increase, rendered the conciliation board unnecessary. This industry-wide agreement established the general pattern of labour relations in coal mines throughout District 18. Both the union and several employers invoked the coercive elements of the IDIA in specific skirmishes, but at most each was only able to achieve a shortterm tactical advantage.45 In 1909 the balance of power changed dramatically when one of the independent mines broke ranks with the association, signing an agreement giving the union the right to examine the company’s check-off book and letting it pressure the employer to hire only union members. The CPR, which controlled several of the mines in the region, objected to the drift towards the closed shop and, along with its allies, decided to tough out the strike. Here King’s efforts at conciliation proved decisive in reaching a settlement since both the federal and provincial governments refused the coal operators’ request for state action against the strikers. But when faced with a common front by employers against the closed shop, the UMWA was not successful. In 1911, King had cajoled the UMWA into participating in the IDIA process. The board, chaired by Reverend C.W. Gordon, endorsed the principle of the open shop and rejected most of the union’s demands. Not only did the operators bring in strikebreakers, but the federal government lent a helping hand by lifting the customs duty on coal from the United States and thereby strengthening the coal operators’ ability to wait out the strike. It was not prepared to condone the union’s demand for a closed shop.

72

L ABOUR BEF ORE THE LAW

After the Liberals’ defeat in the federal election of 1911, UMWA officials agreed to meet with the new federal Minister of the Interior, Robert Rogers, who helped to work out a settlement based on Gordon’s earlier report.46 Weakened by the 1911 strike, the UMWA in District 18 simply survived the depression of 1913–15. But survival itself was a victory. When production rose as the war effort intensified and the Western Coal Operators faced a more militant union challenge, the UMWA was able once again to press for the closed shop. In Lethbridge and the Crowsnest Pass the UMWA used the IDIA as a failsafe mechanism, resorting to conciliation only when it did not have the power to win a strike outright. In Nova Scotia it was a different matter entirely. The coal operators were a tightly organized and politically influential group that had already established a relationship with a weak, and therefore palatable, trade union. In March 1909, immediately following the founding of District 26, representatives of all of the province’s major coal companies met to plan their future strategy against the UMWA. They unanimously resolved that: the agitation being carried on by the organization known as the United Mineworkers of America to gain control of labour at mines is fraught with much danger to the Nova Scotia industry and is likely to result in a loss of a large part of our trade to the Americans. It is further resolved that the attempt of a foreign organization to control our mines should be resisted in every possible manner and a course of action agreed upon.47 The IDIA proved to be of no assistance to the UMWA in any of its disputes with the powerful coal companies; in fact, its effect was pernicious. One conciliation board endorsed the legal right of the coal companies to refuse to recognize a foreign-controlled organization when they already had a relationship with a provincial union. Moreover, the penal provisions of the Act were used against the UMWA.48 In July 1909 the UMWA called out its members against the three large coal operators, demanding recognition, an end to discrimination against its members and activists, and a wage increase. Taking the offence from the outset, the companies tried to break the union by harassing it with legal actions and recruiting massive numbers of strikebreakers. While the precise form of the legal assault by each employer differed, the common theme was their willingness to invoke state repression and the willingness of state actors to respond. The strikes continued for 22 months, provoked the use of massive force, discredited the PWA, and cost the UMWA about $1 million for few tangible gains.

ACCOM M ODATI ON AND CO E R C I O N

73

When the mayors of Glace Bay and Springhill refused to requisition the troops, local magistrates were willing to oblige as soon as mass picketing was involved. Troops arrived early and remained a long time, transforming the strikes into a siege of occupation. The prevailing judicial and magisterial attitude to both the UMWA and strikes was hostile. In both Glace Bay and Springhill the coal companies quickly obtained injunctions directed at the strike leaders, union officials, and the UMWA to prevent them from organizing picketing. Striking miners could be held in contempt for breaching the injunction and the UMWA was potentially at risk for substantial damages. In Springhill a municipal bylaw was invoked by a PWA strikebreaker to make using the epithet ‘scab’ a crime. In Glace Bay, both the troops and Domco’s special constables made numerous arrests: 54 striking miners were charged with meeting for a riot and unlawful assembly. The jury convicted 48 of them and the judge imposed heavy sentences on the leaders. But it was the Inverness Railway Company that demonstrated the most innovative and insidious legal tactic. When the UMWA began to distribute relief, federal labour officials informed Dan McDougall, president of District 26, that relief activities violated the industrial disputes legislation if, like here, the conciliation process had not been completed. On the initiative of the company, a UMWA

Soldiers spent most of the winter of 1909–10 guarding strikebreakers at the Dominion Coal Company’s Cape Breton mines. (Beeton Institute, Eachdraidh Archives, University College of Cape Breton, Glace Bay, Nova Scotia, July 12, 1909—Dominion—Number 3.)

74

L ABOUR BEF ORE THE LAW

official who admitted to distributing food to strikers was charged and convicted of violating the IDIA by a stipendiary magistrate. He was sentenced to six months’ imprisonment and his conviction was subsequently affirmed by the Supreme Court of Nova Scotia.49 The law overwhelmingly favoured the employers, although the union had occasional successful recourse to it. The United Mine Workers rarely initiated legal actions and was mostly involved in defending against the coal companies’ offensive. When Domco began to evict striking miners and their families from company housing, the union challenged the evictions, often successfully, at a rate of seven or eight a day. Moreover, on one notable occasion it was able to turn the tables against Domco. After the UMWA arranged for paid advertisements to be placed in a Montreal newspaper urging Quebec workers not to be enticed by the promise of jobs with Domco, the company retaliated by persuading Quebec judicial authorities to issue warrants for the arrest of three union officials on charges of criminal libel. McDougall was arrested, transported to Montreal, and jailed. The two other UMWA officials fled the country. The union then began its legal counteroffensive; it laid criminal charges against Halifax coal owners and managers on the grounds that they had conspired to fix prices and limit production. This tactic got the operators’ attention. McDougall was released, two of Domco’s officials announced their retirement, and the UMWA withdrew its charges against Domco.50 But this small victory did nothing to stem the tide of defeat rising against the union. After the international announced that it could no longer finance the strike, the leadership of the UMWA in Nova Scotia conceded defeat. The state’s coercive assistance was decisive in breaking the Cape Breton coal strikes. Nearly one-quarter of Canada’s fighting force was in Cape Breton by the early summer of 1909. Throughout, the federal government simply adopted the stance of an interested observer, sending in F.A. Acland, the deputy minister of labour, to conduct an inquiry.51 To a large extent, the UMWA’s recognition battles in the coal mines of Vancouver Island between 1911 and 1913 repeated the Nova Scotia pattern: politically powerful coal operators were able to call on provincial governments, local authorities, and local magistrates for coercive assistance. Although the precise techniques of coercion deployed in the two regions differed, their effect was the same.52 On 5 December 1911, District 28 was formed with 1,500 members and it quickly affiliated with the newly established British Columbia Federation of Labour. Its first conflict was with Canadian Collieries, which had recently been purchased from the Dunsmuir family by a

ACCOM M ODATI ON AND CO E R C I O N

75

consortium led by William Mackenzie and Donald Mann, the notorious construction contractors who also controlled the CNR and exercised a great deal of influence over the provincial Conservative government. On 17 September 3,000 of the miners at Canadian Collieries’ Cumberland and Extension mines went on a holiday to protest discrimination against union members. The company responded by locking out its employees and recruiting Chinese workers, among others, as strikebreakers, and by threatening the strikers with eviction and deportation. The provincial government intervened on the side of the employers by importing 120 special constables sworn in as members of the provincial police force. The Attorney General called on Pinkerton’s to provide an operative to spy on the strikers. On 1 May 1913 the UMWA extended the strike throughout the district, sweeping the rest of the region’s coal operators into the dispute. An additional 3,700 miners walked out and the UMWA headquarters pledged financial support. The responses of the federal and provincial governments to the strike were markedly different. In July, T.W. Crothers, the federal Minister of Labour, visited Vancouver Island and made an ineffectual attempt to persuade the parties to negotiate. He appointed Samuel Price of Ontario as Royal Commissioner to investigate the dispute, since none of the parties bothered with the IDIA. The next month, provincial Attorney General William John Bowser sent in a thousand troops at the request of the Nanaimo mayor and two magistrates. The militia spent a year escorting strikebreakers in and out of coal mines. Two hundred fifty-six men and boys, many of them strike leaders, were arrested and held without trial for several months. The presiding judge, F.W. Howay, not only imposed severe, often the maximum, punishment, he gave a newspaper interview castigating the strikers for widespread unlawful behaviour. After his injudicious outburst, the remaining cases were transferred to another venue. Despite this, many strikers were convicted; three men and two boys were sentenced to two years of incarceration, 23 were sentenced to imprisonment for one year with an additional fine of $100 each, and 11 were given a $50 fine and sent to jail for three months. Those who remained in jail were released in the early spring of 1914 when a general amnesty was granted.53 The report of the Royal Commissioner appointed to investigate the dispute merely served to emphasize the futility of the federal government’s attempts at mediation in the face of the coal operators’ adamant opposition to union recognition. Although the parties ignored it, the report proposed what was in effect a charter of legitimate employer and union behaviour. In exchange for prohibiting the premature resort to strikes under the guise of work ‘holidays’ and the

76

L ABOUR BEF ORE THE LAW

use of the term ‘scab’, employers would be prohibited under penalty from discriminating against employees for union membership or activity. Collective agreements would also be given legal effect.54 Labour organizations throughout the province protested the authorities’ actions in calling in the military and convicting mine leaders and established a Miners’ Liberation League. The British Columbia Federation of Labour complained that the government had assisted the coal operators by sending in special police and militia to act as ‘scab-herders’ and condemned two judges for browbeating defence counsel and denouncing witnesses in the trials of the coal miners on Vancouver Island. The idea of a general sympathy strike by the 120 unions affiliated with the Federation of Labour was raised on several occasions and obtained fairly widespread support, but it was eventually rejected. In July 1914, the UMWA announced that it was forced to suspend payments, having already spent $1 million to support the strike. The strike was called off on the terms outlined in a letter sent by the province’s Premier to the UMWA; the coal operators agreed to concede a no-discrimination clause but refused to recognize the UMWA. One by one, UMWA locals began to disappear. Vancouver Island coal operators could thank the provincial government and the courts for their help in driving another coal union off the Island.55 The Limits of Conciliation State and legal institutions invariably responded coercively to labour conflict when a combination of the following features was involved: a few employers who had concentrated economic power; a provincial government closely connected to dominant economic interests; and a radical union and non-British immigrants. Against the WFM, for example, the Industrial Disputes Investigation Act was deployed not for the purpose of achieving an accommodation, but rather to condemn and coerce the union. In strikes at Cobalt and Porcupine in northern Ontario, the WFM confronted a few well-organized mine operators, with close connections with Bay Street financial backers, who brought in strikebreakers, employed special constables and private detectives, called on the provincial police for resources, and used the law to harass union leaders. In Cobalt in 1907, Tom McGuire, the leader of the union in the region, was prosecuted by the company for inciting a strike in violation of the IDIA for which he was convicted and fined. The strike leaders were also enjoined from organizing picketing. In Porcupine five years later, strike leaders were also prosecuted for violating the Act by inciting a strike, but

ACCOM M ODATI ON AND CO E R C I O N

77

this time they were acquitted on appeal. In Cobalt in 1914, the threat to prosecute the strike leaders for violating the IDIA, coupled with the determination of special constables to charge picketers with intimidation for calling strikebreakers ‘scabs’, quickly brought an end to the strike.56 Conciliation had a better chance where the union involved was of a ‘responsible’ variety and the employer was either prepared or forced to recognize it. The clearest example of this was in Canada’s eastern ports, where conciliation replaced coercion as the primary form of state intervention in disputes. The rationalization of the North American shipping industry and the development of winter port activity at the turn of the century enabled new industrial unions to organize longshoremen and begin to stabilize the work. The longshoremen’s unions’ strategic position in maintaining a smooth flow of goods, as well as their ties with other transportation workers in the same ports and longshoremen elsewhere, made them formidable adversaries. Hot cargo boycotts, in which workers refused to handle struck goods, could disrupt a shipping company’s operations throughout the eastern seaboard if it failed to recognize the International Longshoremen’s Association (ILA). When rivalries between longshoremens’ unions came to an end in 1911, the IDIA helped the Montreal Shipping Federation, which represented the shipping lines along the eastern Canadian ports, and the ILA to work out an entente.57 Stevedoring was one of the rare industries in which conciliation boards endorsed the closed shop. Employers were prepared to grant this because of their dependence on the union: the shippers needed the union’s assistance in controlling the labour market. Dock workers were hard to supervise and the ILA’s hiring halls represented the best form of order available. The IDIA helped to institutionalize durable collective bargaining relations between shippers and stevedores on an industry-wide and transnational basis. In fact, shortly before the outbreak of war, the labour relations between shippers and stevedores was further legalized when the Montreal Shipping Federation and the ILA’s Saint John local agreed to have a conciliation board’s report given the force of law. By having the board’s recommendations made legally enforceable in the New Brunswick Supreme Court the shippers could rely on labour stability while the union had a legal basis for exercising discipline over its members.58 The IDIA also helped to stabilize labour relations on Canada’s street railways, but unlike longshoring on the eastern ports, conciliation never completely supplanted coercion. Nor was the street railway workers’ union ever able to achieve a closed shop. At the turn of the

78

L ABOUR BEF ORE THE LAW

century, organizing drives on Canada’s rapidly expanding street railways were a vital element in the wave of industrial unionism. Dissatisfied with low pay and the mix of discipline and paternalism used by employers to control them, street railway workers were ripe for organization by the American-based Amalgamated Association of Street and Electric Railway Employees. The result was a massive increase in street railway strikes between 1901 and 1903. When the much-loathed monopolists brought in strikebreakers to defeat the strikes, public sympathy was clearly on the side of the strikers. As in the nineteenth century, public rallies and boycotts quickly transformed into riots with the arrival of scabs. Local police forces proved inadequate to deal with the riots that accompanied the street railway strikes in London in 1899, Toronto in 1902, and Winnipeg and Hamilton in 1906—municipal authorities called in the militia. But however much coercive intervention by the state may have restored public order, it did little to assuage public bitterness against the street railway companies. Nor did it establish a basis for labour peace on this essential component of the urban infrastructure. For that reason, public authorities preferred conciliation.59 Before the industrial disputes legislation was in place, voluntary mediation by a range of third parties, including boards of trade, Christian ministers, federal conciliators (King included), and municipal officials, was frequently requested, most often by the workers, and it was often successful in resolving disputes. In 1906 the Ontario provincial government attempted to institutionalize the practice of conciliation for street railway disputes by enacting the Ontario Railway and Municipal Board Act, which provided for voluntary arbitration and mandatory investigation. However, this provincial mechanism operated simply as an adjunct to the IDIA. Between 1906 and 1922, the board intervened in only five strikes, since the vast majority of disputes were referred to the federal conciliation mechanism.60 For street railwaymen, the IDIA was an important mechanism for maintaining labour peace and securing improved wages and working conditions. It was less successful in protecting union members from discrimination by employers, since the onus of proving that the employer was discriminating against union members was difficult to discharge and boards invariably backed the employer’s prerogative to discipline its workforce. Conciliation boards generally recommended employee committees rather than explicit recognition of the union and preferred that union officials refrain from becoming involved in the disputes until after the employees committee had attempted to resolve them. Moreover, on one occasion a conciliation board

ACCOM M ODATI ON AND CO E R C I O N

79

denounced the influence of foreign agitators. In the main, however, street railway workers and their union were happy with the operation of conciliation and by 1912 there was a clear pattern for them to use the IDIA for wage bargaining.61 By contrast, employers did not like the Act and challenged its constitutionality. In 1912 the Montreal Street Railway initiated judicial proceedings to restrain a board from acting in a dispute in which it was involved. The company complained that the IDIA was outside the legislative authority of the federal government; however, two Quebec courts demurred, upholding the validity of the Act because it fell within the federal government’s residual peace, order, and good government power.62 The availability of conciliation did not signal the end of state coercion in street railway strikes in the context of the wave of general labour unrest that swept the country in 1912 and 1913. Where the employer was prepared to use strikebreakers and hire detectives to oppose the union’s demands, coercion triumphed over conciliation regardless of the boards’ recommendations. In Fort William, Port Arthur, Halifax, and Saint John, conciliation boards were unable to facilitate settlements to the disputes and employers resorted to strikebreakers and private detectives. In the resulting riots, strikers were shot, and in one instance killed, by private detectives, and the militia was called out to restore order.63 In textile strikes, federal conciliation, which was voluntarily invoked by the parties, replaced outright coercion in the mills of southern Quebec, but it did little either to protect or improve the workers’ wages or to institutionalize collective bargaining. Strikes in the industry tended to be large but of short duration. Typically they were spontaneous uprisings expressing pent-up grievances that could be triggered by high-handed treatment by foremen or managers. At the turn of the century only a couple of the mills had any form of union structure, and in those cases the unions were only just beginning. Employers responded to a series of mass strikes by either persuading local authorities to call in the troops or using replacement workers with the help of special constables. In Valleyfield, after the troops were called in the strike was settled with King’s assistance. His intervention began an enduring pattern of federal conciliation as the primary means of resolving disputes within the Quebec cotton industry.64 For the next five years the mill owners effectively repressed union organization in the Quebec cotton industry by dismissing union leaders and requiring mill hands to sign contracts that they would not join a union. When the occasional strike flared up, King was called

80

L ABOUR BEF ORE THE LAW

in to intervene. The tide changed in 1906 when 14 locals of the United Federation of Textile Workers of America were established in the cotton mills. In response to a lockout by the Dominion Textile Company in Hochelaga, precipitated by the mill hands’ refusal to sign the ‘yellow-dog’ contracts, the workers at all of the company’s mills went out on strike. Industrial unionism proved to be a potent threat, for at Magog, the only mill in which the union represented all of the workers, including the women, in the same local, the strike was successful.65 The success of the strike at the Magog mill laid the ground for an organizing drive in the textile industry. The Quebec locals broke from the international organization to form a national federation, the working language of which was French, and it was successful in organizing cotton mills, winning wage increases in 1907. But the next year, facing a rival union, the strike was defeated and 6,000 mill operatives returned to work with a wage cut. The only concession the union won was the promise of a Royal Commission of inquiry into the dispute to be conducted by King. But King’s report proved to be no consolation to the union; not only did he blame the mill workers for the strike, he urged the textile union ‘to adopt a more conservative policy towards those with whom they have business dealings’.66 Unlike the strikes at the beginning of the century, those that occurred between 1906 and 1908 saw little coercive intervention by the state. Other than a sprinkling of criminal charges for intimidation in the 1906 strikes, the only other form of state action was the appointment of a conciliation board under the IDIA, and this was at the request of the workers. Faced with powerful employers and a deep recession in 1907, the cotton union embraced conciliation as part of its defensive posture. Since the boards’ reports tended to support the mill operators, they did not demure. Conciliation simply provided a mild form of recognition to a very weak trade union.67 The impact of the federal government’s policy of compulsory conciliation was uneven. It helped to stabilize and institutionalize collective bargaining relations in sectors in which unions were already strong enough to insist on unionization. But it did not work in those situations in which large industrial concerns, which possessed appreciable political power, were determined to import workers for the purpose of strikebreaking; coercion, backed by state institutions, ruled the day. In Cobalt in 1907, in the coalfields of Nova Scotia in 1909, in the railway sheds in Fort William in 1909 and Port Arthur in 1910, in 1912 in Porcupine and the construction camps in British Columbia, and in the Vancouver Island coal mines in 1913, state

ACCOM M ODATI ON AND CO E R C I O N

81

repression proved decisive in assisting the employers’ use of strikebreakers and defeating the strikes. After each of these strikes, the unions did not survive.

Calibrating the Regime: Different Forms of Intervention From 1907 to 1914 disputes in industries essential to the national economy tended to dominate public policy, but strikes in sectors outside federal jurisdiction also made a lasting contribution to the shape and content of regulation. Provincial governments played an important, albeit subordinate, role in trying to achieve a compromise between labour and capital. As we have already seen, the political inclinations and interests of the governing party shaped how various provinces deployed their police forces in a particular strike. Although some provinces were early initiators of conciliation and arbitration mechanisms, they were slower than the federal government to institutionalize a general response to the problem of industrial conflict. Around 1910, unions across the country began to establish provincial labour federations. Provincial governments became more frequent targets of labour’s reform demands, especially for restrictions on the hours of work and measures to address the problems of injured workers. Despite the unevenness of actual reforms, labour made a little headway in the legislative arena. Political reform at the provincial level, whether of the labourist or socialist variety, was one way in which a specific segment of the labour movement, mainly the skilled trades workers affiliated with the TLC, sought to shape the regime of industrial legality. Local elected officials and judicial authorities also made a significant contribution to the regime of industrial legality. Bylaws and the enforcement of vagrancy laws were two ways in which municipal officials in urban centres could restrict and control labour conflict. As well, the Criminal Code restrictions on picketing could be used by local police to harass strikers and union organizers. Policing practices played an important role in specific strikes. But it was magistrates and judges who determined whether the limits of legality had been exceeded. The law was a subsidiary resource in strikes that fell outside the federal conciliation legislation, although legality was an important theme. After the 1907 recession, when the number of strikes plummeted, another wave did not occur until 1912 and 1913, when it had a decidedly, though not exclusively, urban flavour, as skilled craft workers in the building trades and garment workers engaged in major struggles with organized employers. Although these struggles

82

L ABOUR BEF ORE THE LAW

involved different groups of workers—skilled male workers of primarily Anglo descent organized by established craft unions, on the one hand, and an ethnically varied, although primarily Jewish, workforce composed of both men and women and represented by newer industrial unions, on the other—there was a general shift towards the use of more militant tactics. In the building trades’ strikes the occasional arrest or the threat to lay charges over picket-line behaviour prompted union leaders to emphasize peaceful conduct. Thus, employers’ recourse to law to coerce strikers was insignificant. Moreover, neither contractors nor the building trades were adverse to conciliation, although each refused to compromise on the principle of the closed shop. Weak intra-craft solidarity, combined with the surplus of labour, meant that outright victories for the building trades were infrequent. However, the stronger crafts retained the closed shop and relied on arbitration systems to resolve disputes with employers.68 Led by Jewish workers, involving large numbers of women strikers, and assisted by international unions, garment workers in 1910 and 1912 broke with tradition in Toronto and Montreal and engaged in larger sympathy strikes against employers. Industrial unions in the garment industry faced charges of foreign agitation and suspicions of subversion, and the spectre of the ‘professional agitator’ surfaced. Unions organized in secrecy and employers refused to recognize them and used blacklists. But while policing was more aggressive in large garment strikes than it was against skilled building trades workers, it was never extreme. Moreover, striking garment workers charged both the police and private detectives with violence against pickets and used mass demonstrations to challenge legal harassment of strike supporters. Garment unions tested the limits of industrial legality, but they did not flout it and they began to win some victories for their members.69 The use of state law was most pronounced in repressing industrial unrest in the ‘free-speech’ fights in the West. Municipal authorities and police invariably reacted coercively to the impromptu open-air meetings organized by the Wobblies, and sometimes in their enthusiasm they caught acceptable forms of labour protest in their net. The free-speech fights helped to refine the meaning of industrial legality. Parliamentary reform was the only acceptable form of politics, and street meetings were a highly suspect tactic. Although contested by the IWW, this liberal version of legality was embraced by the increasingly industrially oriented unions affiliated to the TLC and the Socialist Party. When the boom broke in 1913, the Wobblies began in

ACCOM M ODATI ON AND CO E R C I O N

83

earnest once again to organize the unemployed and vagrancy laws and municipal restrictions were again used to harass itinerant workers and to bully IWW organizers.70 The first of a series of free-speech confrontations in western cities occurred in Vancouver in 1910 and established a clear pattern. City officials objected to IWW meetings on the streets and then passed bylaws prohibiting public speaking. The police arrested soapbox orators and put them in jail awaiting trial. They also harassed sympathetic labourers by enforcing ill-defined and encompassing vagrancy laws. But instead of giving in to this repression, the IWW put out a call for available members to travel to the city to carry on the battle. After an initial flurry of police harassment, municipal authorities backed away from using coercion since they lacked the capacity to incarcerate all of those engaged in industrial disobedience. Two years later, Vancouver officials demonstrated greater determination in breaking up street meetings. Unemployment had grown and the IWW was organizing transient workers to protest for relief. The city responded by cracking down on vagrants and transients and passing a bylaw forbidding all outdoor meetings. This galvanized the Vancouver Trades and Labour Council, the Socialist Party of Canada (SPC), and the IWW into common action. When R.P. Pettipiece, the secretary of the Vancouver TLC, addressed a public meeting of several thousand, the deputy police chief declared the meeting illegal and arrested him. Waiting mounted police and foot patrolmen waded into the crowd wielding clubs and horsewhips. Scores of people were arrested and authorities moved to seal the border against Wobblies coming in from the United States. Subsequent meetings were met with similar repression. At this juncture, the tactics of the labour protestors began to diverge. The Vancouver TLC and the Socialist Party, representing responsible unionists and politicians, wanted to distance themselves from their disreputable brothers in the IWW and work out a compromise on the free-speech issue with elected officials. A provincial election was in the offing and the government needed to pass some controversial legislation; it did not want the entire labour movement and the opposition mobilized over free speech. The TLC and SPC sought a compromise to the free-speech fights as a vindication of their electoral strategy. The terms of a truce were announced by the mayor of Vancouver; public meetings on streets were prohibited, but meetings in public squares would be tolerated and the indictments against the arrested men would be quashed and the prisoners released. When the mayor reneged on the second part of the deal,

84

L ABOUR BEF ORE THE LAW

only the IWW protested since the majority of the 42 men who had been arrested were either Wobblies or rank-and-file members of the SPC. Of the five men who were initially tried, four belonged to the IWW. At his own trial Pettipiece testified that he did ‘not know anything about it being a free speech fight’. In 1912, the IWW organized massive strikes by labourers involved in city construction projects in Edmonton and Prince Rupert. In the first, the deployment of the militia was only threatened, while in Prince Rupert the militia was called out and dozens of strikers were arrested. Later that year, the full force of state repression was unleashed against the IWW as the British Columbia government attempted to break the railway construction camp strikes.71 The next year saw a series of free-speech fights organized by Wobblies among the unemployed workers who had flooded to Calgary and Edmonton at the end of the railway construction boom. Initially the Edmonton council, which was elected on a reform platform, attempted to address the needs of unemployed workers. But as economic conditions continued to deteriorate and the cost of relief began to mount, Edmonton officials adopted the more aggressive tactics of their Calgary counterparts to deal with unrest among the unemployed. Unable to withstand the constant police harassment, the IWW’s Unemployed Leagues disbanded.72 The free-speech fights bring into focus both the attractions of, and limitations to, liberal understandings of legality. They also illuminate the divisions within the labour movement, which in turn reflected the segmentation of the labour market. Skilled workers, who enjoyed stability and relative prosperity, could exercise political and civil rights. Thus, political action was an attractive strategy for them. Long active in labourist politics, the skilled building trades unions represented responsible men with respectable roots in the cities in which they worked. They supported candidates at both the municipal and provincial levels and engaged in legal reform campaigns. As Mark Leier put it, ‘though they were more radical than “liberals in a hurry,” it might be fair to call them socialists who could wait.’73 At the workplace, the traditional forms of craft unionism were gradually transforming along industrial lines and in 1911 the TLC endorsed industrial unions. Unions in both the building trades and metal works were developing cross-craft solidarities; increasingly, they were engaging in broader-based action. However, they never accepted militant industrial action, counselling instead peaceful action, and when traditional forms of picketing ran afoul of the law they decried the law’s unfairness. They wanted fair and even-handed

ACCOM M ODATI ON AND CO E R C I O N

85

law enforcement and the legal recognition of the rights of working men on par with those of employers. Although they challenged the balance the liberal regime of industrial legality had struck, they never questioned that it might not be possible to strike a ‘fair’ or equal balance.74 Representing propertyless migrant workers, the IWW had little truck with the promises of liberal legality. Political reform was not an option for the migrant workers who could not meet property and residency requirements, and immigrants who were not citizens could not vote. Moreover, the IWW’s anti-political stance reflected its analysis of trade unions and politicians as an emerging new ruling class who had little interest in social revolution. The Wobblies’ rejection of political reform was matched by their disregard of liberal law; one of the IWW’s tactics during the free-speech fights was to encourage its members to break the law. This challenge to lawful authority was met with repression.

The Contours of Industrial Voluntarism By 1911 a large proportion, if not the majority, of the labour movement was dissatisfied with the regime of industrial legality. Judicial interpretations of the IDIA that were unfavourable to unions turned the TLC against it; however, the position of particular unions on the merits of compulsory conciliation depended on their experience with it. The Congress was also unified in its criticism of local policing practices during strikes. In 1913, it called on municipal authorities to give ‘as fair measure of protection to the pickets as they give to other citizens of this country’, complaining that ‘experience in the past has shown us that the police (who should be as much a protector of the labouring man as he is to the employing classes) are very unfair in their attitude towards legitimate picketing, in several cases trying their utmost to provoke a breach of peace with said pickets.’ At its convention the following year, the TLC targeted the Attorney General of BC and Justice Morrison, who presided over the trial of the coal miners, for rebuke, complaining that together they had taken away the ‘rights of the miners to peacefully picket during a strike or lockout in British Columbia’.75 When it came to a striker’s right to picket peacefully, the Congress was united; it did not accept the legitimacy of restrictions on this practice. By contrast, the TLC’s attitude towards military interventions in strikes was ambivalent. The executive was concerned not to be seen as an advocate or defender of violence. Thus it was loath to condemn

86

L ABOUR BEF ORE THE LAW

outright the mobilization of either the militia or the Royal North West Mounted Police. Yet, in the context of specific strikes, such as Lethbridge in 1906, Glace Bay in 1909, and Vancouver Island in 1913, the TLC publicly denounced the deployment of the military as hasty and biased. Referring to the extensive use of the military in Glace Bay, the executive stated that ‘it is a serious consideration that soldiers can be called out without apparent excuse, but simply at the behest of some capitalistic organization to oppress and intimidate wage earners who may happen to be on strike.’ The TLC’s attitude towards the militia was shaped by the concern of the executive and many of its affiliates to be, and be seen as, respectable. Attempts by some unions to persuade the Congress either to discourage or prohibit union members from joining the militia were defeated. In many towns and cities, large numbers of working men willingly joined the ranks of local militia regiments, attracted by the patriotism, respectability, and camaraderie they offered. But support for the militia was quite uneven. In urban areas in which industrial conflict was intense, there were not even militia units for working men to join.76 The state was an important source of coercion in strikes, but it was not the only one. Employers sought the assistance of private detectives and ‘specials’ when exercising their private rights of property and contract. In some instances the distinction between private and public police was blurred, as sometimes special constables were recruited from private detective agencies and on other occasions private detectives were paid for by provincial governments. Frequently armed and specifically employed to break strikes, these men were not averse to violent tactics. While only a few workers were killed during their encounters with private detectives, on several occasions they were wounded by gunshots or clubs. Although in theory they were required to operate within a framework of legality, when employers’ coercive agents stepped outside the bounds of law, unlike strikers, they were rarely prosecuted, and when they were it was by the strikers themselves, not by public authorities. In the few cases in which private prosecutions were brought against detectives or strikebreakers, the charges were either dismissed or the convictions resulted in minimal fines. On only one occasion involving the notorious Thiel detective agency were its agents convicted of a criminal offence, and in that case the detectives who shot into a crowd wounding three strikers during the 1912 Porcupine gold strike were fined $100 each.77 Unions recognized that piecemeal prosecutions of detectives and specials who used violence would not stop this practice. As early as 1908, following the Cobalt strike in which Thiel detectives were used

ACCOM M ODATI ON AND CO E R C I O N

87

by the silver mine operators, the Ontario executive of the TLC lobbied the provincial government for legislation either prohibiting the use of firearms by private detective agencies or abolishing the undesirable agencies altogether. This issue placed the TLC in a quandary: by advocating the abolition of private detective agencies it was forced to endorse public police. In 1909, after the strike by freight handlers at Fort William, during which the CPR used specials to break the strike, the TLC condemned the practice of allowing private corporations to employ private constables with the powers of the regular police and called for the municipality to employ, control, and pay every extra man necessary when public safety was threatened. At a minimum, the Congress demanded that if the practice of employing private police were to continue, then the law should be enforced even-handedly.78 Despite its efforts at class accommodation, the federal government was ultimately unsuccessful in establishing an entente between capital and labour by the outbreak of World War I. While conciliation boards and Royal Commissions articulated the contours and content of industrial legality and responsible unionism, neither employers nor unions wholeheartedly embraced this approach. Pragmatic acquiescence to—rather than normative acceptance of—conciliation board reports and Royal Commission recommendations best characterizes the parties’ responses. Although most unions eschewed violence, they never accepted the employer’s right to use strikebreakers. Nor did they accept restrictions on their right to picket peacefully, even when these restrictions were imposed by the courts. Unions continued to struggle for the closed shop at the same time as employers attempted to operate in a union-free environment. Compromises were achieved, often with the help of federal conciliation, but conciliation on its own never shifted the balance of power towards the unions. Immigration continued to be a source of enduring conflict between workers and employers that the federal government was unable to mediate. While the Alien Labour Act was used by unions to harass employers who imported strikebreakers from the United States, the federal government’s policy of private prosecution instead of public enforcement, combined with employers’ virtually unlimited recourse to immigrant workers via private employment agencies, rendered the Act virtually ineffective. When the 1906 Immigration Act was amended in 1910 to allow the Immigration Department to deport anyone other than a Canadian citizen who advocated the violent overthrow of the government or who created or attempted to create riot or public disorder, federal authorities had a new legal power it could use to target radical activists. Although this power was sparingly invoked

88

L ABOUR BEF ORE THE LAW

against unionists prior to World War I, the Borden government created the precedent of using it to deport well-known Wobblies during the construction camp organizing drives.79 At the end of the war, this precedent was invoked with a vengeance. The strikes of 1912 and 1913 prefigured the peak in worker militancy that occurred during the latter part of World War I and signalled a decisive shift in state intervention away from accommodation towards traditional forms of labour repression. The formation and maintenance of a capitalist labour market dictated Canadian immigration policy, but conflict over this policy took an ethnic and racialized form, pitting worker against worker. When workers and their representatives did not have the political influence to close the immigration door, they directed their anger and fears at the immigrant labourers, who were more easy to intimidate than the employers who used them. Nativism turned ugly as racist attacks were directed against Oriental immigrants. Immigrants from other countries, especially those from southern Europe, were not immune from the prevailing sentiment of British superiority. When their collective resistance to employers was met by strikebreakers and violence ensued, popular opinion supported the use of state violence against ‘foreign’ workers. State repression of industrial conflict was an enduring feature of the Second Industrial Revolution, but it operated within a finely calibrated regime of industrial legality. Its broad contours were clear: collective bargaining was an acceptable practice; foreigners and agitators were equally suspect; conciliation was preferred over confrontation; parliamentary reform was the only legitimate route for political change; and the state would enforce property rights. Most craft unions could operate within the constraints that legality imposed, and some industrial unions may have been assisted by it. However, in situations where employers were determined and state officials were willing, unions and strikes could be, and were, broken. There were compelling reasons for unions to keep within the bounds of legality.

4

Industrial Voluntarism Suspended, 1914–1918

The outbreak of World War I during the summer of 1914 set in motion a chain of events that transformed the context of collective action by workers and interventions by the state for the next decade. While trench warfare along the battlefront limited troop movement for long periods, change on the homefront was much more rapid. The labour market experienced dramatic fluctuations as war mobilization initially exacerbated unemployment and then created labour shortages. State power grew dramatically as well. The passage of the War Measures Act conferred enormous power on the federal cabinet to rule by Order-in-Council, bypassing normal democratic channels. The exercise of these powers produced an unprecedented level of state intervention in the economy and, particularly towards the end of the war, a significant expansion of the state’s repressive apparatus.1 The experience of ‘total war’ also produced challenges to the political and economic order. In Canada, the legitimacy of a regime that preached private sacrifice for the public good to workers and farmers while apparently tolerating war profiteering by autocratic big business was badly undermined. Many workers, having fought or made economic sacrifices during the war to defend democracy against the scourge of Kaiserism, wanted real change at home and demanded a greater share of political, social, and economic power. For many, these aspirations could be achieved within a reformed capitalism, for example, by providing workers with the right to join a trade union and to bargain collectively with their employers. Other Canadian workers, inspired by the Bolshevik Revolution, not only wanted these reforms but also sought a fundamentally different 89

90

L ABOUR BEF ORE THE LAW

social order that could not be accommodated within capitalism. Yet even among this more radical group there were few who advocated armed insurrection or a revolutionary seizure of power. Rather, change was to be achieved by building powerful working-class organizations capable of extending workers’ economic and political influence.2 Labour militancy was also fuelled by the experience of historically high levels of inflation that lasted from the outbreak of the war to 1920. Faced with a rapidly rising cost of living, workers negotiated pay increases only to find them wiped out by continuing inflation. This led to further wage demands. Under these conditions, labour relations tended to be unstable, often to the chagrin of trade union officials who accepted that responsible behaviour and respect for labour agreements was the price of employer recognition. During this period of labour unrest the growing army of semiskilled and unskilled workers joined trade unions in unprecedented numbers. New industrial unions thrived and some of the more traditional craft unions expanded their membership base and established more encompassing organizational forms. Amalgamations, federations, and coalitions of associated crafts and more active district and local trades and labour councils were just some of the ways workers sought to achieve a more solidaristic vision of labour organization. But the growth of militant industrial unionism did not entirely overcome existing fragmentations. Deep rifts developed within the labour movement, pitting some elements of the more conservative international craft unions affiliated with the TLC against those with a more radical perspective.3 As well, ethnic and racial hostility kept some workers out of the labour movement or at its margins. Similarly, women, despite their increased presence in the workforce during the war years and their employment in ‘male’ jobs, were only weakly integrated into the ranks of organized labour, despite the movement’s commitment in principle to their unionization. Instead, organized labour supported female minimum-wage laws, which were also pursued by a number of women’s organizations, including the National Council of Women of Canada and the Women’s Labour League.4 The subject of this chapter, then, is the state’s role during this turbulent period. The dialectic of accommodation and coercion played itself out in complex ways, changed over time, and varied according to local conditions, the nature of the union involved, and the impact of the dispute on the maintenance of war production.

IND USTRI AL VOLUNTARI SM SUS P E N D E D

91

The Early War Years: Business as Usual Canada’s entry into the war on 4 August 1914 posed an immediate dilemma for the TLC, which had, beginning in 1911, annually passed resolutions supporting a general strike to prevent a European war. At its convention held at the end of September 1914, the TLC beat a quick retreat and backed the British war effort as a struggle against continental despotism. Although it did not adopt a no-strike pledge, the TLC leadership encouraged ‘responsible’ union behaviour and strike avoidance. Radicals remained opposed to the war but few actively resisted. Vocal opponents risked arrest and prosecution. For example, Albertan socialist John Reid was imprisoned for a year in 1916 for discouraging recruitment, while Social Democratic Party leader Isaac Bainbridge was repeatedly prosecuted in Ontario for publishing anti-war literature. Clearly, though, most workers sided with the Empire, not just on nationalist grounds, but also because they believed the rhetoric that this was a war of democracy against Kaiserism.5 The outbreak of war did not immediately produce any amelioration of the depressed labour market conditions and in some respects it worsened the situation. Trade union membership continued to decline through 1915, as did the frequency of strikes and lockouts. As a result, there was little pressure on state officials to consult with labour leaders or to alter their approach to labour relations.6 This ‘business as usual’ attitude also informed the state’s approach to internal security. Press censorship was limited and only a handful of individuals were prosecuted for seditious utterances. Resident aliens were treated more harshly. During the early months of the war, some 6,000 were interned, although most were released by 1916 when labour shortages began to be felt.7 During this early period, the TLC sought to protect the interests of its members employed in the rapidly expanding armaments industry. It lobbied the federal government to extend its fair wages policy to war production, but it met stiff opposition from the Shell Committee and its successor, the Imperial Munitions Board (IMB), headed by the Canadian meat-packing tycoon, Joseph Flavelle. Early in 1916 the TLC proposed the creation of a permanent, bipartite Fair Wages Board vested with authority to set wages and working conditions in warsupply industries, but the politics of quiet lobbying and compromise proved fruitless. After a period of delay, the government moved to resolve the issue in a manner totally unsatisfactory to the labour

92

L ABOUR BEF ORE THE LAW

movement. On 23 March 1916, it extended the Industrial Disputes Investigation Act to all war production in Canada.8 Labour’s opposition to the extension of the IDIA was rooted in recent experience. Resort to the IDIA was always a second-best strategy, pursued only when workers lacked sufficient bargaining strength to force their employers to make concessions through negotiation. By 1916, the combined effect of military recruitment and expanded war production was tightening labour markets and pushing up the cost of living. In these circumstances, the extension of the IDIA favoured employers because it required strikes and lockouts to be postponed until after the conciliation process was completed. Not only did the delay cost workers money, but according to A.B. Garretson, president of the Order of Railway Conductors of America: ‘It has been demonstrated time and again that the compulsory period provided for investigation . . . is almost invariably utilized by the employer . . . to reinforce himself against the efforts of his men to better their condition.’9 Some labour leaders also perceived bias in the IDIA administration. James McVety, the socialist BC labour activist, complained: ‘Whenever the organization is able to take care of itself the Board is invoked but when the organization is weak the Board is not granted.’ More specifically, there were allegations that the Minister of Labour had twice failed to establish boards when requested to do so by the Western Federation of Miners. As a result, a majority of delegates to the TLC convention held in Toronto in September 1916 voted to condemn the minister’s action and rejected the motion of the TLC executive to endorse a demand that the IDIA be amended in the ways suggested by the Congress’s solicitor, John O’Donoghue. Instead, the delegates adopted a motion demanding repeal of the entire Act.10 The failure of the TLC’s lobbying efforts widened the gap between it and a growing number of militant trade unionists. Machinists in Toronto and Hamilton, organized by the International Association of Machinists, secured the appointment of a Royal Commission to investigate their complaints by threatening a general strike. The Commission’s report, issued on 6 May 1916, substantially supported the workers’ demands, including majority support for a nine-hour day. Munitions manufacturers in Toronto accepted the recommendations, but not those in Hamilton. Frantic efforts by the IMB and government and union officials to avoid a strike proved futile, and on 12 June between 1,500 and 2,000 workers employed at over 30 munitions plants walked off their jobs. The government, fearing that the strike might spread, imposed strict press censorship. Faced with hostile

IND USTRI AL VOLUNTARI SM SUS P E N D E D

93

employers and a lack of external support, the strikers eventually returned to work one month later without achieving their demands.11 Despite the strike’s failure, worker militancy continued to rise. Trade union membership climbed rapidly, as did the level of strike activity. Moreover, the boundaries of narrow craft unionism were being breached as workers joined together in broader industrial groupings to pursue common goals. Employers responded with their own organizing to better resist worker demands. Under these conditions, state officials were pressured to adopt a more interventionist approach, although they still preferred to operate through the IDIA or by making more frequent use of ad hoc interventions, including the appointment of commissions and the deployment of Department of Labour fair-wages officers as roving troubleshooters. When these measures failed, government officials sometimes threatened to become coercive, but this was rarely done.12

Rebalancing Coercion and Consent in the Late War Years In the last two years of the war, industrial unions made substantial gains in organizing. For example, in the steel industry, industrial unions established a working dialogue with the steel companies, while the Newfoundland Industrial Workers’ Association grew rapidly and, after a three-month strike in 1918 and the prodding of government officials, was recognized by the island’s largest employer, Reid Newfoundland.13 Serious conflict in the Nova Scotia mines was averted by the appointment in 1917 of a Royal Commission, chaired by Judge Chisolm. The Commission convinced the two competing unions, the PWA and the UMWA, to amalgamate and got the coal operators to recognize the new Amalgamated Mine Workers’ union and to check off union dues.14 More vigorous state intervention was required to maintain peace in Alberta’s Crowsnest Pass mining region. Local miners defied the UMWA’s no-strike policy and breached existing agreements in an escalating series of disputes with the coal operators. The primary source of dissatisfaction was the failure of wage increases to keep up with inflation. After several interventions, the government established by Order-in-Council a director of coal operations for District 18 in June 1917, empowered to investigate and regulate wages, hours of work, and other matters affecting coal production costs. Through a combination of bargaining and fiat, the director, W.H. Armstrong, settled the disputes on terms favourable to the union. Although closed-shop

94

L ABOUR BEF ORE THE LAW

agreements were not formally reached, the unions were often able to achieve this result by refusing to work with non-union men. With a few exceptions, the director prevented further serious labour strife for the war’s duration.15 Collective action by workers, however, did not always succeed, even with government mediation. In British Columbia, employees of Cominco at the Trail smelter were represented by the WFM, which in 1916 changed its name to the International Mine, Mill and Smelter Workers’ Union (IMMSW) in an effort to distance itself from its militant history. These workers were also concerned about inflation and were seeking an eight-hour day. With the assistance of a federal fairwages officer, the union and Cominco reached a three-year agreement in 1916, but one year later the local union repudiated the contract, demanding an eight-hour day, a further wage increase, and a dues check-off. At that point, Cominco management dug in its heels, determined to rid itself of the union. Despite several attempts by various government officials to mediate the dispute, Cominco remained uncompromising and ultimately triumphed, in part because the international union refused to support the strike, insisting that members honour signed contracts.16 Employers in Manitoba also fiercely resisted efforts by trade unionists in the spring of 1917 to organize the packing houses, female clerks at a Woolworth’s store, and metal workers in Winnipeg’s contract shops. In each of these instances, the employers obtained the assistance of superior court judges, who issued injunctions. This caused the TLC to revive its campaign against the labour injunction and for reform of the Criminal Code provision regarding picketing. As well, that year a large strike of unskilled immigrant construction workers in Winnipeg resulted in the arrest of 23 strikers. Those from enemy countries were interned in Ontario and the others were tried in Winnipeg.17 Resort to legal coercion in strikes was not exclusively a Winnipeg phenomenon. In a strike of Saint John, NB, plumbers in the late spring, four strikers were charged and convicted of intimidating strikebreakers while two others were charged and acquitted of murdering a strikebreaker. Another two were charged with arson of the summer home of an employer. In Montreal, eighteen men and nine women were arrested in two picket-line confrontations with police and scabs during a two-month general strike of 4,500 workers in the men’s clothing industry during the winter of 1917. In northern Ontario, a strike in June 1917 by miners employed at the North Pines Nickel Mine led to the arrest of seven men for inciting strikes and

IND USTRI AL VOLUNTARI SM SUS P E N D E D

95

disorder. Because they were aliens, however, the local OPP officer decided not to charge them, but rather arranged for their internment at a camp in Manitoba. As well, during an attempt to organize milk delivery drivers in Toronto, the business agent and two members were arrested and charged with conspiracy and intimidation.18 In sum, through 1917 the federal government’s primary response to the growing militancy of the industrial workforce was to promote compromises through investigation, mediation, and, on occasion, the appointment of federal officials to take control of operations.19 As well, the federal government also sought a rapprochement with the leadership of the TLC. It began by indicating its desire to bring a labour representative into cabinet. That fall, Gideon Robertson, an officer of the Order of Railroad Telegraphers who had been appointed to the Senate in January 1917, was appointed to cabinet as minister without portfolio with particular responsibility as chair of the Labour Subcommittee of the Reconstruction and Development Committee.20 At the provincial level, governments in British Columbia, Manitoba, and Ontario were interested in developing more co-operative relations with trade union leaders and enhanced their institutional capacity to respond to labour’s concerns through the creation of labour branches, bureaus, or departments.21 These efforts, however, did not prevent employers not engaged in war production from resisting unions and obtaining assistance from local police and courts to protect their property and their right to conduct business without unlawful interference. Other events that year, however, produced a less tolerant political environment in which repression, not conciliation, was seen to be the appropriate response to worker militancy. This led to the development of an increasingly bifurcated state labour policy that, on the one hand, recognized a role for conservative, ‘responsible’ craft unions and, on the other, enhanced the state’s capacity to repress radicalism and militant industrial unionism. State officials, however, disagreed among themselves over the appropriate mix of conciliation and coercion, and the balance shifted over time and from place to place. One source of government concern about labour radicals was their opposition to conscription. From the outset of the war the TLC opposed conscription, although it recommended co-operation with a system of labour registration established by the government in 1916. Labour radicals, concentrated in western Canada, urged workers to refuse to register. The split within labour widened when the Borden government introduced compulsory conscription in the summer of 1917. At its convention that September, the TLC reaffirmed its opposition to

96

L ABOUR BEF ORE THE LAW

conscription in principle but opposed active resistance to its implementation, as the labour radicals advocated.22 Government concern about labour radicalism was also fuelled by the Russian Revolution in 1917, which inspired the Canadian left. Despite the absence of a real revolutionary threat, the government strengthened the state security apparatus and increased repression of radical organizations. The IWW was a major concern, notwithstanding its weakness. On the Prairies and in British Columbia, federal immigration officials worked closely with Dominion and local police to prevent entry of IWW organizers into Canada or to remove them, often without legal authority.23 By the beginning of 1918 the newly elected Unionist government headed by Robert Borden was convinced that it needed both to secure the co-operation of the more conservative elements of the labour movement and to contain the growing threat of radicalism. In short, some combination of conciliatory and repressive measures was required. Within the war cabinet, Gideon Robertson and Newton Wesley Rowell, former leader of the Ontario Liberal Party, most actively promoted the policy of conciliation. They were supported in the House of Commons by members such as George Brecken Nicholson, a former trade unionist turned successful lumber baron, who was elected in 1917 as the Conservative member for Algoma East. He urged: ‘we must call upon the leaders of the working forces of this country to take their positions and accept their responsibility in connection with working out the great problems before us.’24 In January the government invited representatives of the TLC and the railway brotherhoods to meet with cabinet officials in Ottawa. Rowell presided at the opening session and, in total, three joint meetings were held. Agreement was not reached on many issues, but the TLC achieved the recognition it so very desperately wanted. The government agreed that in the future labour would be represented on all advisory committees and commissions relating to the prosecution of the war or the reconstruction period following it. In exchange, the government obtained the labour leaders’ acceptance of national registration of man and woman power and the establishment of government labour exchanges. The government subsequently appointed labour representatives to various councils and commissions. For example, the Labour Subcommittee was reconfigured as a tripartite body. The government also initiated a policy of hiring former trade union officials in the Department of Labour.25 A further series of measures followed, all designed to win the support of ‘responsible’ trade union leaders to the war effort. Amendments

IND USTRI AL VOLUNTARI SM SUS P E N D E D

97

to the IDIA were introduced by T.W. Crothers, the Minister of Labour, on 10 April 1918. These responded to a number of concerns raised earlier by the TLC. Most significantly, workers were deemed to be employees after a strike or lockout so that they could apply for a board, judicial review of the minister’s decision to appoint a board was precluded, and the minister was given authority to appoint a board or recommend an inquiry without an application. The TLC executive used these changes to persuade the 1918 convention to drop its earlier demand for repeal of the IDIA.26 While these measures satisfied the TLC leadership that it now exerted some influence with the government, they did nothing to quell the growing wave of labour unrest. Moreover, the dimensions of labour conflict were widening as worker solidarity grew. Sympathy strikes and general strikes threatened to cause major disruptions to the nation’s production. Employers, too, were becoming increasingly recalcitrant despite the government’s support for compromises. The combination of growing worker militancy and increasing employer resistance deprived the government of what it sought most from its labour policy: industrial peace. Indeed, there were nearly 50 per cent more strikes in 1918 than in 1917. Continued labour conflict and the fear of growing radicalism fuelled government concern about Canada’s ability to prosecute the war effectively. In February 1918 Gideon Robertson lobbied for special investigators to be sent to British Columbia to crack down on IWW agitators. This recommendation, he claimed, was ‘offered on behalf of and in the interests of the bona fide labour organizations of Canada who are at the present time trying to co-operate with the Government.’ The Dominion Police conducted an inquiry but reported that presently there was little to fear. Despite this, hardliners such as Joseph E. Rogers, superintendent of the Ontario Provincial Police, lobbied for more vigorous action and expressed concern that current Orders-in-Council were insufficient to enable the police to ‘squash’ this serious threat.27 The government began responding favourably to such demands. On 4 April it issued PC 815, the infamous ‘anti-loafing law’ that made it an offence, punishable by a fine up to $100 or six months in jail in default, for an adult male not to ‘be regularly engaged in some useful occupation’. Although the order expressly exempted striking workers from its provisions, it could be and was used against union organizers and radical agitators.28 It also issued PC 915, further restricting public expression of anti-war sentiment or criticism of the Allied war effort. The Dominion Police also established a special IWW section and a

98

L ABOUR BEF ORE THE LAW

network of spies that, with the aid of private investigators hired by employers, eventually succeeded in infiltrating nearly every important radical organization in Canada. Finally, in May, Borden commissioned C.H. Cahan, then a Montreal lawyer, to investigate radicalism and make recommendations for its containment.29 Still, at least through the first half of 1918, the primary response of the federal government to striking workers was conciliatory, even though local officials and employers often favoured more coercive measures. This pattern is well illustrated by a dispute in Alberta that February between Frank Moodie and the coal miners he employed. The Mounties were summoned to protect Moodie and his property from miners angered by his attempt to expel forcibly the UMWA organizer from town. They set up a battery of machine guns, which triggered a general strike of 1,500 Drumheller coal miners. Rowell and Borden intervened, ordered the Mounties to remove the machine guns, and extended the jurisdiction of District 18’s director of coal operations, W.H. Armstrong, to cover the dispute.30 The government directly acted to solve the growing labour crisis in mid-July by issuing three Orders-in-Council. The symbolic centrepiece was PC 1743, a declaration by the government of its war labour policy. The preamble cited the growing industrial unrest and attributed it to a variety of causes, including the tight labour market, rising cost of living, denials by employers of the right to organize, and hasty action by workers who ignored the IDIA. The major concession to organized labour was explicit recognition of certain principles, including: the right to organize without employer interference and, especially, the right not to be discharged merely by reason of union membership; maintenance of union shops established by agreement; entitlement of all workers to a living wage sufficient to support themselves and their families in decency and comfort; protection of worker health and safety, not to be compromised by the demands of war production; and equal pay for women doing work ordinarily performed by men. The trade-off for these basic concessions included the following principles: no strikes or lockouts were to occur for the duration of the war; unionized workers were not to use coercion or intimidation to force other workers to join unions; and there were to be no challenges to existing open shops.31 PC 1743 conceded many of the demands labour had been making since 1916 and was consistent with much of the normative framework articulated by IDIA boards.32 The problem from a labour perspective, however, was that the order did not provide the means to implement its principles. Its only concrete action was to establish a tripartite

IND USTRI AL VOLUNTARI SM SUS P E N D E D

99

Board of Appeal empowered to review the recommendations of boards of conciliation appointed under the IDIA. While the decisions of the Appeal Board were final, they were no more binding than the original recommendations. Employers were disappointed by PC 1743 since it failed to ban strikes, a step they had been actively lobbying the government to take.33 Two other Orders-in-Council, issued shortly after PC 1743, reflected the government’s growing concern that the IDIA was being ignored by workers. The first announced that the government would no longer leave enforcement to private parties and that it would ‘ensure the prompt prosecution of any violation’. When it became apparent that violations of the IDIA were continuing without prosecutions ensuing, the government issued a second Order-in-Council giving the Dominion Police the authority to enforce the Act, including the appointment of special officers for that purpose.34 Railway operations were an area of special concern to the wartime government. Railway management was centralized through the establishment of the Canada Railway War Board. This provided the railway unions with an opportunity to negotiate national agreements, and bargaining on this basis commenced at the end of April 1918. The talks stalled and the government, which could not tolerate a disruption of the railways, initiated an extraordinary set of measures to achieve a resolution. First, the government issued PC 1768 in July to implement wage rates established by an American commission (the McAdoo award). This type of government wage-fixing was unprecedented in industrial Canada. Second, the Minister of Labour pressured the parties to establish a bipartite board of adjustment vested with authority to resolve any contract disputes. In the event of a deadlock, the matter was to be decided by an external referee whose ruling was final and binding. This was the first national consensual interest arbitration scheme.35 Despite the apparent success of this intervention in institutionalizing responsible unionism for the railways, other events that summer fuelled the government’s fear of growing radicalism and convinced it to adopt more repressive measures. First, a July strike by militant letter carriers in Toronto and western Canada threatened to spread. Federal cabinet ministers T.W. Crothers and Arthur Meighen travelled to Winnipeg, where they negotiated an agreement that provided for the investigation of grievances by the Civil Service Commission and a promise that strikers would not be penalized for their action.36 A second event was the general strike organized on 2 August 1918 by the Vancouver Trades and Labour Council to protest the death of

100

LABOUR BEFOR E THE LAW

Ginger Godwin. Godwin was a leading labour radical in British Columbia who, while leading a strike of smelter workers in Trail, was suspiciously reclassified as fit for military service despite obvious serious infirmities. He fled to the hills where he was shot and killed by a Dominion Police officer. Although an inquiry exonerated the officer of wrongdoing, many workers believed Godwin had been murdered. They organized a general strike to protest, an action that clearly exceeded the government’s definition of legitimate trade union activity.37 The spread of police unionism was even more alarming, as it raised concerns about the reliability and loyalty of police officers in strike situations. This fear was exacerbated by the affiliation of police unions to the TLC. During the summer of 1918, a committee of the Chief Constables Association of Canada met with Justice Minister Rowell to demand legislation banning police unions. Although Rowell was not prepared to go that far, the government issued PC 2213 on 7 October 1918, prohibiting the Mounties from joining or associating with any union or association of employees.38 It was against this backdrop that Cahan delivered his report to C.J. Doherty, then Minister of Justice, in mid-September. His report confirmed the government’s worst fears. A growing Bolshevik conspiracy in Canada was at the root of the widening industrial unrest. In response, cabinet issued on 25 September PC 2381, banning enemylanguage publications, and PC 2384, proscribing unlawful associations and making it illegal to speak in favour or be in possession of their literature.39 While these measures ostensibly were directed against wartime enemies, the choice of banned publications and proscribed organizations made it clear that the government’s principal concern was radicalism, particularly among immigrant aliens the government believed were its principal proponents. Thus, PC 2384 proscribed various Russian, Ukrainian, and Chinese radical groups, as well as the IWW and the Social Democratic Party (SDP).40 Despite this repressive turn, many state officials still cultivated friendly relations with the more conservative leadership of the trade union movement and sharply distinguished between illegitimate trade unions, to be targeted by these restrictions, and legitimate ones.41 Newton Rowell, who was not present when the repressive orders were approved, and cabinet colleague Thomas Crerar got the SDP removed from the illegal list and the use of foreign languages at some meetings permitted. Rowell also gave directives to the Dominion Police to focus their enforcement efforts on the small minority of

INDUSTRI AL VOLUNTARI SM SUSP E N D E D

101

largely foreign-born workers who were committed to revolutionary activity.42 Percy Sherwood, Chief Commissioner of the Dominion Police, passed the message on to his provincial counterparts. ‘The great object to be accomplished now is vigorous enforcement but with discretion, that is avoidance of interfering unnecessarily with organizations that are legitimately desirous of helping the working class.’43 Still, police officials were satisfied they now had the power to contain the menace. In a jocular vein, Sherwood commented to J.E. Rogers, Superintendent of the Ontario Provincial Police, ‘If the Police cannot now deal with the IWW, and other kindred organizations, the only other effective measure of control would be to give the Military Police authority to shoot on sight.’44 The boundary between legitimate and illegitimate labour organizations, however, soon collapsed in the face of the strike by Calgary freight handlers against the CPR for union recognition. The strike quickly spread. In early October, 3,000 freight handlers in Port Arthur struck, the Calgary Trades and Labour Council authorized a general strike vote, and the Canadian Brotherhood of Railway Employees threatened to declare a general strike in support of the freight handlers’ demand for recognition. In response, the federal cabinet banned all strikes and lockouts in industries covered by the IDIA for the duration of the war. The public rationale for this action was that the government had already made adequate provision for the just and equitable settlement of disputes and that the work stoppages would interfere with the war effort. The ban made any person who ordered, incited, or participated in an illegal strike or lockout liable to a $1,000 fine and/or six months in jail. In lieu of strikes and lockouts, the order provided that every decision of an IDIA board of conciliation or board of appeal was binding on the parties and made it an offence for an employer to discharge or refuse to employ a worker merely because of membership in a union or for engaging in legitimate trade union activities outside of working hours.45 Needless to say, this provoked widespread protest from both business unionists and labour radicals, producing a degree of unity in the labour movement that had not been seen for some time. Tom Moore, the newly chosen head of the TLC, formally complained after each repressive order, especially the last, recalling labour’s co-operation with the government and its promise to co-operate with labour. Some workers were also willing to engage in direct action, defying the government’s authority. Support for the freight handlers’ strike grew and, on 20 October, the Winnipeg Trades and Labour Council authorized

102

LABOUR BEFOR E THE LAW

its members to conduct a vote on whether a general sympathy strike should be declared. The government, faced with such flagrant disregard of its lawful authority, countered by ordering the arrest of five strike leaders for violating the IDIA strike ban. It was not, however, willing to put all its eggs into the basket of coercion, and so, simultaneously, Gideon Robertson was dispatched to broker a deal. Eventually an agreement was reached. The employer agreed to submit the dispute to arbitration and to rehire the strikers. A further condition of the settlement was that the government drop the charges. Thus, despite the government’s increasing attraction to coercive solutions, it was not prepared to mobilize the force necessary to enforce its orders in the face of widespread collective defiance.46 A similar hesitancy appeared in its enforcement of the Orders-inCouncil banning radical organizations and foreign languages. At a meeting in Percy Sherwood’s office in Ottawa on 6 October 1918, plans were made for a nationally co-ordinated series of raids on the offices of radical organizations on the night of 19-20 October. The largest action was in Ontario, where raids were conducted in 20 Ontario towns and cities. This produced mass protests by carpenters and machinists in Toronto. Although TLC president Tom Moore appealed for workers to confine themselves to ‘constitutional action’, many evinced a greater willingness to defy the state. In Stratford, for example, workers threatened a general strike to protest the arrest of a worker charged with possession of banned literature. These protests seem to have had an effect. According to J.E. Rogers, after the October raids Ottawa backtracked, ordering police to permit those arrested to be released on bail and to put prosecutions over until later. Rogers could only find one explanation for this reticence: ‘It has simply got to be that when the labour element crack the whip the Government fall in line.’47 In sum, by the end of the war large numbers of Canadian workers had become radicalized and were prepared to act collectively on a broader scale than before and in pursuit of political as well as economic objectives. Moreover, they were willing to defy employers, state officials, and, at times, officials of their own unions if they stood in the way of achieving a fairer and more democratic economic, social, and political order. To contain this threat a variety of tactics were advanced, involving both conciliation and coercion. Tensions arose over the appropriate mix and the state’s response varied. Nevertheless, the dominant approach of the federal government was to promote a rapprochement with conservative trade union leaders, to support the right of workers to join trade unions without interference,

INDUSTRI AL VOLUNTARI SM SUSP E N D E D

103

and to encourage employers to recognize and bargain with ‘responsible’ trade unions. Yet, the government was not generally prepared to coerce employers who refused to accede to this approach. In conjunction with conciliation, the government also accepted the need to use coercion against radicals, particularly foreign radicals of Russian, Ukrainian, and Finnish origin. But hardliners who wished to enforce repressive measures vigorously were held back by more moderate colleagues concerned about civil liberties and the opposition of responsible trade union leaders. Moreover, when workers defied the ban on strikes the government was not prepared to confront them with force. So, despite the turn towards coercion at war’s end, the trajectory of the state’s postwar policy and practice remained uncertain.

5

The Postwar Confrontation and the Restoration of Industrial Voluntarism, 1919–1925

The end of the war brought no relief from the growing class conflict at home as workers were poised to redeem the pledge that the war had been fought to build a better world. A resolution passed by the Toronto District Council of the International Association of Machinists in support of striking police captured this sentiment. ‘[W]e, the workers of this country, have been engaged in a war for freedom and democracy . . . and now it is finished we intend to get some of the freedom and democracy for which millions of our class have sacrificed their lives.’1 For some, capitalism was at the root of the problem and socialism was the solution. For others, labourist reforms within a largely untransformed capitalist economy would suffice. But whatever their larger political vision, workers were unwilling to return to the harsh conditions that prevailed at the war’s outset. Workers’ demands centred on the achievement of an eight-hour day, increased wages, and the right to bargain collectively through representatives of their own choosing. Trade union membership skyrocketed and industrial action reached unprecedented levels.2 This upsurge in worker organization and militancy was met by an equally determined employer offensive. Anticipating economic dislocations due to the end of war production and increased international competition, many employers sought to cut production costs through wage decreases and productivity increases. Moreover, as demobilization turned labour shortages into surpluses, the balance of power shifted in favour of employers, providing the opportunity to roll back labour’s wartime gains. Faced with this looming confrontation, state officials’ first priority was to maintain social order and economic growth within a capitalist 104

THE POSTWAR CONFRONTAT I O N

105

framework. While there were differences between those who believed the best way to achieve this was by constructing a framework of cooperative relations between organized workers and employers and those who saw trade unions as undesirable interlopers, any challenge to the structure of property relations was met with concerted action by all branches of the state. As the threat of radicalism faded, the federal government, particularly after the 1921 election of Mackenzie King and the Liberals, abandoned any effort to institutionalize a new industrial relations regime. Instead, it revived the pre-war regime of industrial voluntarism, characterized by the provision of a legal infrastructure that the parties could invoke. This entailed greater decentralization: the role of provincial and local governments grew and there was increased resort to civil actions, criminal prosecutions, and reliance on local and provincial police. With decentralization also came greater regime variation. For example, judges disagreed among themselves over the precise scope for collective action, and the availability of police protection depended on local circumstances. Nevertheless, the overall trend was towards a narrowing of the scope for lawful collective action by workers.

Postwar Repositioning The end of the war did not bring any immediate change in state policy. The ban on strikes ended shortly after the armistice was signed, but the state of emergency continued under the War Measures Act and the repressive Orders-in-Council remained in force. Police continued to gather intelligence, conduct raids, and prosecute individuals.3 Concern over radicalism was fuelled by two particular developments. The first was the continuing spread of unionism among police and firefighters. Employers and government officials worried whether unionized police would act against their brothers and sisters in the labour movement. Their fears were heightened when there was rioting during a mid-December strike by some 1,500 Montreal municipal workers, including police and firefighters. When Toronto police struck several days later, the mayor quickly intervened and brokered a compromise that included the appointment of a Royal Commission to investigate police unionism. Both the Montreal arbitration board appointed to settle the strike and the Ontario Royal Commission opposed any association between police unions and the rest of organized labour. Indeed, in a confidential letter to Ontario’s Attorney General, I.B. Lucas, written just prior to his appointment as commissioner, Chief Justice W.R. Meredith articulated his underlying

106

LABOUR BEFOR E THE LAW

anxiety: ‘[I]n my judgment the time has come where those in authority must[,] if the danger of the condition existing in Russia and Germany being imported into Canada is to be prevented[,] stiffen their backs and stand up firmly against such things as a general strike by the sworn guardians of the peace.’4 The second development was the deepening split within the Canadian labour movement between international unions that dominated the TLC and labour radicals. Tensions mounted at the TLC convention in September 1918 and grew thereafter, leading to a split at the March 1919 convention of radical trade unions. For employers and state officials, the One Big Union (OBU) movement that emerged from this convention represented a dangerous development that needed to be checked.5 The rapprochement between the TLC leadership and the federal government, cemented at the end of the war, provided support for a policy that emphasized the promotion of responsible trade unionism. Employer co-operation, however, was essential for its success. At best, it was only partially obtained, and, then, mostly at the political level, not within the workplace. Although some elements within the CMA supported closer ties with responsible trade unionists, the large majority of employers resisted greater union recognition or more concessions to unionized workers. Not surprisingly, then, the spring 1919 round of collective bargaining produced long and bitter strikes.6 Pressure mounted on government to reduce the disruption. In Manitoba, the Liberal government of T.C. Norris met with representatives of the CMA and the local TLC to promote a scheme of conciliation it planned to enact into law. The proposed Industrial Conditions Act conferred on a tripartite council the power to investigate and report on any trade dispute under provincial jurisdiction. The council was also given authority to investigate the cost of living, conditions of employment, and unfair profits and to assist workers who believed their contracts of employment had been breached or they had been unfairly discriminated against by their employers. This measure was unsatisfactory to the Winnipeg Trades Council, the chief concern of which was the coercive edge of the legal infrastructure of voluntarism—the courts. It wanted legislation shielding trade unions from injunctions and damage actions. In an effort to appease labour, the government added a provision to the bill empowering the joint council to declare in force four rules of law that would give trade unions, their officers, and members much of the immunity

THE POSTWAR CONFRONTAT I O N

107

from civil actions and injunctions that they were seeking. This was done over the vociferous objections of the local branch of the CMA, which complained that such a measure would ‘place trade unions above the law’. Instead, it called on the government ‘to assert the authority of the State and to repress all unlawfulness’. Even as amended, the law was unacceptable to the Manitoba labour movement. It refused to nominate labour appointees, thereby rendering the scheme inoperative.7 The federal government’s primary response continued to be the promotion of conciliatory relations with responsible trade unions. While attending the Paris Peace Conference, Prime Minister Borden participated in drafting the labour sections of the Versailles Treaty that established the International Labour Organization and endorsed, among others, the principles of workers’ freedom of association and the eight-hour day. At home, Gideon Robertson, who had become Minister of Labour shortly before the war’s end, established a Royal Commission to inquire into means of permanently improving relations between employers and employees. This action was supported by the leadership of the CMA and the TLC, which were given the right to nominate two commissioners each. The remainder, chosen by government, represented the ‘public’ interest. The Royal Commission on Industrial Relations (RCIR) was chaired by Chief Justice T.G. Mathers of Manitoba, who had previously written judgements that narrowly defined the right of workers to picket peacefully. Needless to say, labour radicals did not put much stock in the exercise as the RCIR set out to hold hearings across the country in mid-April 1919.8 Two days before establishing the RCIR, the government rescinded PC 2384, banning unlawful organizations, and modified PC 2381, prohibiting the use of enemy languages. While the relaxation of these measures was welcome, it did not signal an abandonment of coercive tactics against radicals; indeed, other devices were being constructed. On 7 April 1919 the government introduced amendments to the Immigration Act that prohibited persons from entering Canada who advocated force or violence against organized government or who were members of societies opposed to organized government. During the Winnipeg General Strike, the government realized it had not made provision for the removal of such immigrants already in Canada and it amended its own bill to enlarge the grounds for deportation. The government also established a special committee of the House to review the law relating to sedition and seditious propaganda, further strengthening its infrastructure of coercion.9

108

LABOUR BEFOR E THE LAW

State Repression of the Postwar Labour Revolt While the RCIR held public hearings and the House of Commons considered the government’s legislative initiatives, labour conflict around the country rose to unprecedented levels. Although the conflict was widespread, Winnipeg was undeniably the focal point. The Winnipeg Building Trades Council (BTC) and Metal Trades Council (MTC) were rebuffed by employers who insisted that they would only negotiate with committees of their own employees. On 6 May the Winnipeg Trades and Labour Council authorized a general strike vote in support of the MTC and BTC. One week later, the tally was in: 11,112 for, 524 against. The strike began on 15 May and was eventually joined by some 30,000 workers. The Labour Council’s Strike Committee assumed responsibility for running much of the city, issuing authorizations to permit certain services to continue. A strike that began over hours, wages, and collective bargaining quickly took on a larger significance, potentially challenging the established order.10 This was immediately apparent to the local bourgeoisie, which formed its own Citizens’ Committee of One Thousand on the day the strike began. Not only did the Citizens’ Committee seek to blunt the strike by organizing volunteers to provide services withdrawn by the strikers, but it also lobbied the federal government to take strong measures to break the strike. Labour Minister Gideon Robertson and the acting Minister of Justice, Arthur Meighen, departed for Winnipeg shortly after the strike started. When they reached Fort William they met with representatives from the Citizens’ Committee, who convinced them this was no ordinary strike but one that threatened legitimate authority. It did not take a lot of persuading. In Robertson’s and Meighen’s eyes, the strike leaders were not legitimate, ‘responsible’ trade unionists. Arriving in Winnipeg on 22 May, Robertson and Meighen turned their attention to the federal postal workers, who had joined the strike. From the outset it was clear that they were not going to adopt the tactics of compromise that had been used to settle the 1918 dispute. An ultimatum was issued that workers who did not return to work would be dismissed. When they failed to return, replacements were hired. As to the larger dispute, for Meighen and Robertson the only acceptable outcome was the defeat of the strike; the only question was how to accomplish this result. The optimal solution for the government was for the strike to collapse without direct state coercion, since the application of force might give added impetus to a wavering sympathy strike movement across the country.11 Thus,

THE POSTWAR CONFRONTAT I O N

109

Robertson and Meighen’s first response was to endorse the refusal of the employers to negotiate with the trade councils and to deny the strikers any support. This, they hoped, would hasten the strike’s demise. However, they also began to lay the groundwork for more coercive actions if they became necessary. As a first step, Meighen appointed A.J. Andrews, a founding member of the Citizens’ Committee and a leading Winnipeg lawyer, as the Justice Department representative in Winnipeg. He became the government’s principal adviser and strategist, blurring the distinction between private right and public interest. Like Robertson and Meighen, he initially favoured a cautious approach while preparing a coercive alternative. He urged the federal government to pass the pending amendments to the Immigration Act. When he discovered that they would not permit the deportation of the British-born strike leadership, he lobbied Meighen, who then introduced a further amendment that was passed by the House and the Senate and given royal assent within a matter of hours.12 That same day, the House received the report of the special committee considering sedition laws. Solicitor General Hugh Guthrie denied there was any connection between the committee’s recommendations and the Winnipeg General Strike, although he did admit the committee recognized that there was ‘at this moment, an organized, concerted and sustained effort to spread false and pernicious doctrines, designed in the first instance to cause dissatisfaction amongst His Majesty’s subjects, to set class against class’. The recommendations were truly draconian. In addition to increasing the maximum sentence for sedition from two to 20 years, it proposed the repeal of section 133 of the Criminal Code, which deemed that a person did not have a seditious intention if he or she in good faith intended to show that the government had been misled or mistaken in its measures or to point out defects in the government and to rouse support for reform by lawful means. As well, the report proposed re-enacting parts of PC 2384, which deemed certain types of associations unlawful and made it illegal to be a member of such an organization. A person who attended a meeting of an unlawful association, spoke in its support, or distributed its literature was presumed to be a member unless he or she proved otherwise. The property of the association could be seized without a warrant. The report also recommended new provisions prohibiting the publication or distribution of seditious literature. A bill incorporating these recommendations was introduced on 27 June and subsequently passed. The law, however, only came into force on 1 October 1919, too late to be used against the Winnipeg strikers.13

110

LABOUR BEFOR E THE LAW

In Winnipeg, tensions mounted as large and frequent marches by pro- and anti-strike veterans posed the risk of violent confrontation. As well, picketing intensified in an effort to discourage workers from returning to their jobs. On 6 June the mayor issued a proclamation, drafted by Andrews, banning public gatherings and parades. It did not achieve its goal, but in the days that followed a number of strike supporters were arrested and charged with various public order and picketing offences. As well, the city hired special constables to replace regular police who refused to sign loyalty oaths.14 When Gideon Robertson returned to Winnipeg on 11 June he was convinced that coercion would be required to end the strike, but he was concerned that if arrests were made the running trades would join the strike, tying up railway traffic nationally. To minimize the risk, he worked closely with leaders of the international railway unions, exemplars of responsible unionism, who warned their members not to strike. Indeed, James Murdock, then a vice-president of the railway teamsters and subsequently Labour Minister in Mackenzie King’s cabinet, even recruited strikebreakers to uphold the Brotherhood’s contract in the event the local went out.15 On the night of 16-17 June a series of raids were conducted, leading to the arrest of six British-born and four ‘foreign’-born

Special constables were sworn in during the Winnipeg General Strike after regular police refused to sign loyalty oaths demanded by City Council at the urging of the Citizens’ Committee. (Provincial Archives of Manitoba, Winnipeg Strike 16, N12307.)

THE POSTWAR CONFRONTAT I O N

111

strike leaders. Two other strike leaders of British origin were subsequently detained. The Anglo leaders were charged with seditious conspiracy, while the ‘foreigners’ were detained under the Immigration Act. Initially, the plan was to detain all the leaders without bail and deport them as soon as possible, but Andrews and the government soon abandoned this course of action. The TLC, which had approved the Immigration Act amendments, opposed the deportation of labour leaders without a trial. As well, a wave of protests raised concerns that the public would not accept the legitimacy of deporting British subjects in a manner that was portrayed by the strikers and their supporters as violating the rights of British subjects to personal liberty and British justice, rights that soldiers had shed their blood to protect. Meighen responded to the protests with promises that the leaders ‘will be given the same treatment as all other persons charged with offences, and will not be denied the safeguard which the Law of the country provides.’ As events unfolded, however, it became clear that this guarantee of British justice was reserved for ‘whites’ only.16 The six British-born leaders were released on 12 June, while the four ‘foreign’ leaders were retained in custody. By then, however, pro-strike veterans had already planned a march in defiance of the mayor’s ban. Fearing that the specials would not be able to control the situation, the mayor obtained the assistance of the RNWMP. Scuffles erupted when the Mounties charged into the crowd in an effort to disperse it. The Riot Act was read and the Mounties opened fire on the crowd. One man was killed and many others wounded, including one who subsequently died from his injuries. As crowds swept through the streets they were met by the specials and fights erupted. The mayor called on the militia for assistance and eventually the streets were cleared. Ninety-four people were arrested that day. More repression followed. On 23 June, Andrews forbade publication of the strikers’ newspaper and had warrants issued for the arrest of Fred Dixon and J.S. Woodsworth, who had taken over after the former editor was arrested for seditious conspiracy. Even after the strike ended on 26 June, hardliners in the Borden government got authorization for police to conduct raids across the country on the homes of known alien agitators and on the offices of radical organizations. Approximately 200 were swept up in these raids. As well, that month the Militia Act was amended to permit an increase in the maximum permanent force from 5,000 to 10,000. This was necessary, according to Major General Mewburn, Minister of Militia and Defence, because of ‘the troubles that are arising in different parts of the country’.17

112

LABOUR BEFOR E THE LAW

The massive use of force ended the strike, but the fate of those arrested was yet to be determined.18 The provincial government was eager to defuse the conflict and refused take charge of the prosecutions. Instead, following the time-honoured tradition for dealing with strikes, in early July it appointed Justice H.A. Robson to conduct a public inquiry. Robson’s report, issued in November, endorsed the provincial government’s agenda of restoring peaceful labour relations between responsible unions and employers. Radicalism was said to be restricted to a minority of workers, predominantly those of foreign birth. It was inconceivable to Robson that British and Canadian workers would reject the existing, ‘British’ order of things. Robson praised the efforts of the international unions to stop sympathy strikes, but he also recognized that workers had legitimate grievances and warned that, ‘If Capital does not provide enough to assure Labour a contented existence . . . then the Government might find it necessary to step in and let the state do these things at the expense of Capital.’ He thought that the recently enacted Industrial Conditions Act provided the means to facilitate voluntary settlements and urged organized labour to make it operative by nominating members to the joint council.19 Elements within the federal government also favoured a conciliatory approach. Arthur Meighen, still the acting Minister of Justice, and Prime Minister Borden sought a rapid return to normalcy in the postwar period, including an end to repressive measures. Meighen initially refused to finance the prosecutions and rejected the suggestion from Andrews and others that persons found to be in possession of seditious literature during the strike should be prosecuted under the consolidated regulations of the War Measures Act. Only after C.J. Doherty returned as Minister of Justice in late July was Andrews finally able to secure the support of the federal government for prosecution of the British-born leaders. Andrews was appointed as special counsel with a free hand to hire co-counsel and incur expenditures for the trials.20 Meanwhile, the ‘foreign’ leaders were dealt with under the Immigration Act. They were brought before a board of inquiry presided over by Winnipeg Provincial Court Judge R.M. Noble, having been detained in Winnipeg without bail from the time of their arrest. The allegation against them was that they had attempted to create public disorder and to assume powers of government without lawful authority, contrary to the recently amended s. 41 of the Immigration Act. One was acquitted but the other three were ordered deported. Two of the orders were subsequently reversed so that, ultimately, only one of the foreign-born leaders was deported. Ironically, at the end of the

THE POSTWAR CONFRONTAT I O N

113

day, despite the denial of bail, the foreign leaders fared better in the administrative proceedings than their Anglo counterparts who got the benefit of British justice. The same cannot be said, however, for the 31 foreigners who were arrested during the 21 June disturbances or on the 1 July raids. Although most were fined or given short jail sentences, Winnipeg Magistrate Hugh John Macdonald recommended that a dozen be deported. These men were sent to the internment camp at Kapuskasing and from there they were secretly deported without a jury trial or a board of inquiry.21 The indictment of the eight Anglo strike leaders charged them with six counts of seditious conspiracy, which occurs when two or more people agree to commit acts in furtherance of a seditious intent. The crucial issue was what constituted seditious intent. At common law, the core of seditious intent was the intent to alter or change governments by unlawful means. However, it could also include an intent to bring into hatred and contempt the constitution, law, and government, to promote class hatred, or to create public disturbances. The parameters of sedition determined the limits of free speech and political action, and thus its definition was always highly contentious. Indeed, the proposed definition of seditious intent in the draft 1892 Criminal Code was withdrawn during the legislative session when it became apparent that it would provoke an acrimonious debate. In the absence of a statutory definition, the common law, with all its uncertainty, applied.22 The principal charge against the strike leaders was that they conspired to bring into hatred and contempt the government, laws, and constitution of Canada and Manitoba, to promote class hatred, and to introduce in Canada by unlawful means a Soviet system of government. The Winnipeg General Strike was just one of a number of actions that the leaders had organized to further this seditious intent and, it was argued, this strike, like any general or sympathy strike, was unlawful. The essence of the defence was that there was no seditious intent; the purpose of the strike was to enforce the demand that employers recognize the MTC as the workers’ bargaining agent; and that the strike was legal. A.J. Andrews and J.B. Coyne, another member of the Citizens’ Committee, appeared for the Crown. During the preliminary hearings that summer there was much debate about the admissibility of evidence. Magistrate Noble ruled consistently in favour of the Crown and committed the accused for trial. He also revoked their bail on the ground that they had broken their previous undertaking not to make public statements similar to those for which they were charged and refused to offer a new undertaking of the same kind. An application to

114

LABOUR BEFOR E THE LAW

the Manitoba Court of Appeal was denied by Justice J.D. Cameron on 14 August, precipitating another letter-writing and petition campaign. One veteran wrote to the Minister of Justice: I wish to register my disapproval of the sample of ‘British Justice’ being meted out to Labour Men awaiting trial in Winnipeg. If this is the democracy we fought for, I for one am ashamed of the khaki I wore. Yours for a real democracy In October the accused were finally released on bail.23 When the criminal assizes opened in November, Andrews obtained the jury list and turned it over to the RNWMP with instructions to question the potential jurors on their political beliefs and view of the strike. To limit the number of jury challenges by the defence, Andrews also decided to first prosecute one of the most prominent strike leaders, R.B. Russell, and to hold the trial of the other defendants over to the next assize. As a result, the defence was limited to four challenges. With these advantages, Andrews was able to obtain a jury composed entirely of farmers and rural businessmen.24 Russell’s trial began towards the end of November 1919. The principal question of fact was whether Russell and his colleagues had formed a seditious intent and whether the Winnipeg General Strike was part of a plan of action designed to advance that intent. The trial was long and contentious, marked by sharp clashes over the admissibility of evidence. As in the preliminary hearing, Justice T.L. Metcalfe ruled consistently in favour of the Crown, allowing a wide net of circumstantial evidence to be admitted because he accepted the premise that the Winnipeg General Strike was part of a wide-ranging conspiracy, a matter disputed by the accused. On 22 December, after 23 days of hearings and 703 exhibits, Justice Metcalfe charged the jury. He adopted a broad definition of seditious intent, virtually gave the jury direction on matters of fact, and described general sympathy strikes as illegal. The jury found Russell guilty and on 28 December he was sentenced to two years in the penitentiary.25 Russell appealed his conviction on a number of grounds, all of which were rejected unanimously by the five members of the Manitoba Court of Appeal. The attitude of the bench towards the strike reflected that of the Citizens’ Committee. According to Chief Justice W.E. Perdue, ‘During a period of 6 weeks, industry and the ordinary pursuit of civil life in Winnipeg were interrupted and the citizens subjected to apprehension and terror.’ Of even greater significance from a legal perspective were the opinions expressed by the court on

THE POSTWAR CONFRONTAT I O N

115

the legality of sympathy and general strikes. Chief Justice Perdue held that all sympathy strikes gave rise to both civil and criminal liability. Because the accused was not acting for the purpose of a trade combination (e.g., to advance collective bargaining) but rather to overthrow the existing form of government in Canada, he was not protected by the immunity given to trade unionists from prosecution for criminal conspiracy. Moreover, since the strike also involved numerous offences punishable by statute, including breaches of the IDIA’s provisions for mandatory conciliation, breaches of contract endangering life and property, and breaches of Manitoba’s Master and Servant Act requiring workers to give notice of termination, it was outside the statutory immunity. In a concurring opinion, Justice Cameron gilded the lily by drawing attention to the failure to include an exception in favour of peaceful picketing in the Criminal Code provisions regarding intimidation. The legal message was clear. Even in the absence of a seditious conspiracy, sympathy and general strikes were illegal, and possibly peaceful picketing was as well.26 The trial of the seven other Anglo leaders began late in January 1920. Again, the jury selection process was manipulated by Andrews, who this time secured the services of the McDonald detective agency to vet the jury pool with the result that the 12 jurors selected were all from rural Manitoba. The trial, which extended to March, was treated by the defendants as a political event and they sought both to challenge the legitimacy of the proceeding by pointing out various irregularities, including the disclosure of the jury list to the prosecution, and to defend the strike by locating it within a tradition of British radicalism. All of this was to no avail—six of the seven were found guilty. One man was acquitted on all counts and another was convicted on only one count. Five were given one-year sentences; the other received six months. No appeal was launched.27 During the course of the trial of the seven for seditious conspiracy, two other strike-related trials were conducted. William Ivens, one of the seven, was also facing a contempt of court citation for a speech he gave after Russell’s conviction, in which he stated that Russell ‘was tried by a poisoned jury, poisoned Judge, and he is in jail to-night because of a poisoned sentence.’ This, in addition to Ivens’s references to the presiding judge as ‘Tommy Metcalfe’ and his claim that they were in the midst of a campaign of persecution and oppression, led Justice T.G. Mathers to find Ivens in contempt of court. The other trial was of Fred Dixon, who had been arrested along with J.S. Woodsworth and charged with seditious libel. Because the charge of seditious libel required the prosecution to identify specific statements spoken or

116

LABOUR BEFOR E THE LAW

published by the accused, it was unable to introduce the mass of evidence used in the trials of the eight leaders. Dixon ably defended himself, asserting that his intent was to bring about peaceful reform and urging the jury to protect the principle of freedom of speech. He was acquitted and the charges against Woodsworth were dropped.28 In addition to the high-profile cases of the strike leaders, numerous other participants in the strike and riot were prosecuted for their actions. The trials took place in a special court and were not completed until December 1919. No comprehensive account of the outcomes is available, but there were a number of acquittals as well as convictions. Most of those convicted were given small monetary fines, but three, all with apparently non-Anglo last names, were given jail sentences ranging from one to two years.29 These events demonstrated that once the political and legal establishments at all levels saw the conflict not simply as a large-scale strike over collective bargaining but as a challenge to constituted authority, they worked co-operatively to repress it. Parliament did its part to strengthen the infrastructure of coercion by permitting the deportation of the strike leaders, and the federal government appointed A.J. Andrews, a leading member of the Citizens’ Committee, to co-ordinate its response locally. Officials in Winnipeg pitched in by dismissing the police force, swearing in a paramilitary force of volunteers in their place, reading the Riot Act, and calling out the militia. Once the immediate threat was ended, some cracks in the wall of unity appeared, but ultimately the hardliners prevailed. The judiciary also pitched in. It made rulings on jury selection, admissibility of evidence, and questions of law that helped the prosecution. Although concerns about preserving the legitimacy of state authority through adherence to the norms of British justice deterred authorities from deporting British subjects without first obtaining a conviction after a trial by jury, such niceties were not required for the treatment of ‘foreigners’, although most of the foreign leaders fared better in administrative proceedings than did their Anglo colleagues in criminal trials. Workers challenged the legitimacy of the state’s repressive response by appropriating the language and symbolism of British justice. How better to defend oneself from charges of sedition than to claim that your demands were rooted in the British tradition and to deflate the pretensions of the constituted authorities by demonstrating their failure to live up to the very ideals they claimed to be protecting. Yet, the demand for British justice was not just a demand that authorities live up to their own ideals. As Chad Reimer forcefully argued,

THE POSTWAR CONFRONTAT I O N

117

workers redefined British justice, giving it a substantive content that addressed their concerns as workers. The right to a living wage, to engage in collective bargaining with a representative of their own choosing, and to strike in support of other workers’ demands were read into British justice.30 In short, the behaviour of Winnipeg workers indicated both the extent of their disaffection from dominant norms and the state of their fledgling attempts to reconstruct an alternative vision of a just social, economic, and legal order. These views remained strong and had a lasting effect on politics in Winnipeg and Manitoba.31 Even during a period of heightened conflict, the level of direct state coercion used in Winnipeg was unusual. General strikes in Toronto and Amherst, Nova Scotia, which occurred during this same period, saw virtually no direct state coercion. The same was true of most of the sympathy strikes conducted in support of Winnipeg’s workers. In large measure, this was because these strikes were incomplete, short-lived, and unaccompanied by ongoing demonstrations and parades. As well, international unions often actively opposed participation by local affiliates in the sympathy strike movement, even suspending charters in some instances.32 In short, state officials did not view these other strikes to be as threatening to the established order; state repression was not used because it was not seen to be necessary.33 Where radical industrial unionism was perceived as posing a serious danger, governments were more willing to intervene actively and directly. This was demonstrated in the coalfields of Alberta and Nova Scotia where radical industrial unionism survived beyond the defeat of the Winnipeg General Strike. In Alberta, coal operators and international officials in the UMWA worked together with the government to defeat radicals in UMWA District 18. John L. Lewis, leader of the UMWA, revoked the charters of local unions dominated by radicals. They responded by reconstituting themselves as District 1, Mining Department, OBU. W.H. Armstrong, who continued as director of coal operations for District 18, refused to authorize any negotiations with the OBU. In December 1919, under the auspices of the federal Minister of Labour, Gideon Robertson, an agreement was entered into between the Western Coal Operators Association and the UMWA that provided for a closed shop and dues check-off. As a result, anyone professing OBU membership could not be employed. Armstrong made the agreement legally enforceable by incorporating it in Order 141, and when some operators still refused to fire OBU members, he issued a further order specifically requiring them to do so. This amounted to

118

LABOUR BEFOR E THE LAW

a state-ordered lockout, but when it was challenged as a violation of the IDIA, the courts rejected the claim. The judiciary also contributed to the OBU’s defeat by issuing an injunction that prohibited the OBU leadership from ‘inducing, inciting, advising or requesting’ its members to strike because they had failed to apply first for conciliation under the IDIA. This ruling was particularly ironic in view of the earlier refusal of the court to hold the employer liable for locking out OBU members without prior resort to IDIA proceedings.34 When Armstrong’s authority was challenged because it derived from War Measures Act Orders-in-Council that were no longer in force, the government passed a statute late in the 1920 session ratifying, confirming, and continuing the director’s powers until the end of the next session of Parliament. This was truly extraordinary legislation and it provoked a heated debate in the House. Mackenzie King, the recently elected leader of the Liberal opposition and no friend of labour radicals, led the charge. King not only objected to the fact that Parliament was being asked to ratify orders whose text was not before it, but he also opposed the principle of compulsory state enactment of terms and conditions of employment. He specifically cited Order 141 and the fact that the government’s measure would give legal force to the requirement of membership in the UMWA as a condition of employment. He also cast doubt on its constitutional validity as it dealt with matters of contract, a subject of provincial jurisdiction. These objections did not sway the Unionist majority.35 The timing of conflict in the eastern coal industry was quite different from in the West. The wartime accommodation reached in 1917 between the newly established Amalgamated Mine Workers and the coal producers survived the end of the war. Employers were persuaded to continue the check-off and union recognition after the AMW locals affiliated with the UMWA and re-established District 26. In 1920 a strike was narrowly averted when Gideon Robertson summoned the parties to Montreal to hammer out an agreement. A notable feature of the contract was its embrace of industrial legalism, manifested in a management rights clause, a no-strike provision, and a grievance procedure culminating in compulsory and binding arbitration. In exchange the union got significant wage increases at a time when most workers faced wage cuts and an agreement by the company to negotiate with the union for a new agreement before the present one expired.36 The Montreal agreement was extremely controversial within the union and became an object of contention between the radical and labourist factions. At the District 26 convention held in June 1922 the radicals gained the upper hand and passed resolutions calling on

THE POSTWAR CONFRONTAT I O N

119

District 26 to apply for membership in the Moscow-based Red International Labour Union and advocating the overthrow of the capitalist system and the capitalist state, by force if necessary. In elections for the executive that August, two Communists, J.B. McLachlan and Dan Livingstone, won key positions.37 This left turn alarmed John L. Lewis. Matters came to a head in July 1923 when District 26 launched a sympathy strike in support of striking steelworkers employed by Besco (the consortium that also operated numerous coal mines in the province). In a circular to the membership, McLachlan denounced the actions of the provincial police who had earlier charged into a crowd, wounding strikers and innocent bystanders, and demanded that the government of Nova Scotia be held responsible for this crime. The government, it was alleged, connived to have the letter published in the Halifax Chronicle, thus setting the stage for the provincial Attorney General, W.J. O’Hearn, to order the arrest on 6 July of McLachlan and Livingstone for ‘unlawfully publishing false tales’ that were likely to cause injury to the government and the provincial police, contrary to section 136 of the Criminal Code. Further, because the publication was in Halifax, it provided a pretext for trying them there. The accused were initially denied bail, but this decision was reversed by Justice Joseph Andrew Chisholm of the Nova Scotia Supreme Court and his ruling was subsequently confirmed.38 The arrests of McLachlan and Livingstone were hailed by the establishment press. An editorial in the Montreal Gazette, reprinted in the Halifax Chronicle, asserted that ‘it is necessary that the strikers in Cape Breton shall be made to understand that Canada is not yet Russia, that communism will not be tolerated in this country, and that the laws of the land must be observed even by striking trade unions.’ John L. Lewis also opposed the strike, not only because of the political orientation of the District 26 leadership, but because he wanted the membership to respect existing agreements so that the UMWA could prove itself to be a responsible union. He condemned the deliberate breach of an existing contract as ‘indefensible and morally reprehensible’, and charged that ‘Your assault upon the laws and institutions of your Provincial and Dominion Governments cannot be countenanced.’ On 17 July, 11 days after the arrests, he suspended the District’s autonomy, removed the local leaders, and ordered the miners back to work. The combined action of the province and Lewis led to the end of the sympathy strike and the defeat of the steelworkers.39 Although attempts to have the venue of the trial moved to Sydney were unsuccessful, the indictments were later amended, substituting

120

LABOUR BEFOR E THE LAW

three counts of seditious libel, a significantly more serious offence, for the charge of spreading false news. The Crown dropped the charge against Livingstone. The trial of McLachlan was similar in many respects to the trials of the British-born leaders of the Winnipeg General Strike. Justice Humphrey Mellish, a corporate lawyer and former solicitor for the Dominion Coal Company, presided at the trial. Over the objection of defence counsel, he allowed the Attorney General broad leeway to admit circumstantial evidence regarding industrial disorder in Cape Breton. McLachlan’s lawyers convinced him to mount a technical defence and he did not testify. Justice Mellish instructed the jury that calling a strike to oppose the presence of the police amounted to incitement against law and order. McLachlan was convicted and sentenced to two years in Dorchester Penitentiary. Subsequent appeals failed, but McLachlan was released after a few months on a ticket of leave given by the Privy Council in Ottawa.40 This was the last large sympathy and political strike of the era. By this time bitter experience had demonstrated that if large groups of workers could be mobilized effectively either to support other workers or to press political demands, a repressive response from the state was likely to follow. Indeed, following the McLachlan case, any strike in support of a political demand could be plausibly characterized as sedition.

The Return to Voluntarism Even while the federal government used coercion, it did not abandon its efforts to consolidate the rapprochement with responsible unions that had been achieved during the war. This approach was supported by leading political figures, including Robert Borden, Gideon Robertson, and Newton Rowell, who believed that legitimate trade unions had a role to play in giving workers a voice in their workplaces and in achieving better conditions. As O.D. Skelton wrote in the aftermath of the Winnipeg General Strike, it was an absolute necessity to make ‘democracy a reality by granting labor a steadily widening share, a responsible junior partnership, in the control of industry’.41 Because responsible trade unions were useful in combatting labour radicalism it was helpful to keep them onside. Workers and their families were also voters and the creation of labour parties and farmer-labour coalitions undermined traditional political alignments. Therefore, electoral considerations weighed in favour of at least appearing to be sympathetic to demands made by responsible trade union leaders.

THE POSTWAR CONFRONTAT I O N

121

At the heart of this project was the need to distinguish between legitimate and illegitimate unions. Robertson made this point in a speech to the annual meeting of the Canadian Manufacturers’ Association in Toronto at the beginning of June 1919: ‘Labor organizations which require contracts made be fulfilled merit and command the respect of employers, of the public and of governments. Labor leaders who advocate that only might is right, who hold that law, justice and honour should be discarded at will, merit and receive the condemnation of all good citizens.’42 Labour-management co-operation, however, required both responsible unions and employers willing to recognize and bargain with them. The critical question was not whether there were responsible trade unions willing to institutionalize co-operative labour-management relations, but whether those unions would find ‘responsible’ employers willing to participate in such an endeavour. Moreover, if they did not, would the state use coercion against ‘irresponsible’ employers who refused to recognize the legitimate right of their employees to be represented by trade unions of their choice? The answers soon became apparent. For example, while the troubles in Winnipeg were unfolding, conflict between hardrock miners and northern Ontario mine operators was also brewing. Mine managers refused to recognize the Cobalt Miners Union, an affiliate of IMMSW. On his way to Winnipeg, Gideon Robertson met with the union executive during the strike and wrote to Prime Minister Borden about his concern over the refusal of the employers to recognize the right of their workers to organize. He suggested that Borden invite the managers to Ottawa and express to them ‘the gravity of the labour situation in Canada and the disastrous results that are bound to come unless they recognize and comply with the principles laid down at the Peace Conference touching labour questions.’43 The managers refused Robertson’s request to meet, but no further action was taken by the government. The infrastructure of coercion did not apply to such employer behaviour and the government was not inclined to extend it.44 The lack of employer support for an accord with responsible unions was further reflected in the failure of the Royal Commission on Industrial Relations to issue a unanimous report in June 1919, in the immediate aftermath of the Winnipeg General Strike. The majority report, endorsed by the three labour commissioners but only one employer commissioner, called for minimum wages for women, girls, and unskilled labour, an eight-hour day, and state unemployment and sickness insurance. The majority also supported industrial councils

122

LABOUR BEFOR E THE LAW

and the right to organize, but did not suggest government action to institutionalize either. Even these weak recommendations were too radical for two of the three employer commissioners, who issued a separate report opposed to an expanded role for the state.45 In the absence of consensus, the federal government was unwilling to institutionalize a new industrial relations regime. Instead, it convened a National Industrial Conference in September 1919 in the hope that some voluntary agreement would emerge. Prime Minister Borden’s opening address was read by Robertson. It called for cooperation between labour and capital and urged employers to recognize ‘that out of the horror and welter of this war new ideals have been evolved and new conditions established’ and that ‘labour is something more than a commodity.’ The right of both employers and employees to organize was now well recognized, Borden asserted, and the rights of each are ‘moulded and governed by agreements reached through negotiations between such organizations in the different trades’.46 While the trade unionists in attendance must have been pleased by Borden’s rhetoric, his presumption that the right to organize and bargain collectively was widely accepted must have rung hollow. Employer representatives at the conference opposed the institutionalization of an industrial relations regime that accorded trade unions a major role in representing workers’ interests. The conference failed to produce joint resolutions on key issues related to collective bargaining. For example, the unions urged employers to recognize the right of workers to organize and bargain collectively. Unions demanded that the federal and provincial governments make it unlawful for employers to discriminate against workers ‘merely by reason of membership in labour unions or for legitimate labour union activities outside of working hours’. However, the employer delegation would not accept that workers should enjoy a legally protected right to organize without fear of retaliation.47 Rather than the beginning of a new initiative, the National Industrial Conference signalled the failure of the federal government’s attempt to construct a postwar labour policy built on the rapprochement achieved with responsible unions during World War I. Although some employers maintained collective bargaining relations in the postwar period, most were unwilling to become partners with trade unions in a new industrial order. They preferred neo-paternalistic employee representation schemes and other welfare capitalist measures that excluded independent trade unions. Moreover, by the end of 1920, the economy was entering a depression and unemployment

THE POSTWAR CONFRONTAT I O N

123

climbed rapidly. The trade union movement, weakened by defeats and facing unfavourable labour market conditions, could not force recalcitrant employers to accept them even as junior partners. As a result, the government abandoned efforts to institutionalize an entente between labour and employers. About the only positive federal legislation obtained by organized labour was an amendment to the Immigration Act in 1921 that permitted accredited representatives of international trade unions unrestricted entry into Canada.48 From this point, the federal government’s role in industrial relations declined. The last War Measures Act Orders-in-Council were terminated in 1921 and later that year Mackenzie King’s Liberals won the federal election, bringing to power a Prime Minister who strongly favoured voluntarist arrangements. Although the government supported the TLC’s bid to counteract the trend of employer wage-cutting by strengthening the Industrial Disputes Investigation Act, amendments passed by the House of Commons in 1923 and 1924 were blocked in the Senate. The federal government’s role was further reduced in 1925 by the decision of the JCPC in the Snider case, holding that labour and employment were matters of property and civil rights and, therefore, primarily within provincial jurisdiction.49 The failure of radical and conservative trade unions to achieve their objectives through direct action or corporatism led them to adopt an electoral strategy. The Independent Labour Party won 11 seats in the Ontario election of October 1919 and became the junior partner in the new government headed by the United Farmers of Ontario. In Manitoba, various labour parties successfully collaborated and, in 1920, also elected 11 MLAs, including convicted Winnipeg strike leaders George Armstrong, Fred Dixon, William Ivens, and John Queen. Four labour representatives were elected in Nova Scotia, three in British Columbia, and two each in New Brunswick and Quebec. Despite this stronger labour presence, very little was gained legislatively.50 The greatest advances were made in the area of female minimumwage legislation. Towards the end of World War I, Alberta, Manitoba, and British Columbia passed laws establishing wage boards empowered to set the minimum wages for women. Quebec and Saskatchewan passed similar legislation in 1919 and Ontario and Nova Scotia followed in 1920 (although Quebec and Nova Scotia did not make their legislation operative until 1930 and 1927, respectively). These initiatives, however, were only partially a response to labour demands; women’s organizations and religious organizations also had been demanding protection for working women. Moreover,

124

LABOUR BEFOR E THE LAW

protectionism of this sort was extremely problematic both because it portrayed women as weak and unable to fend for themselves and because the laws were designed to reproduce, not challenge, wage inequalities between men and women.51 There were also some improvements to provincial health and safety and workers’ compensation laws. The demand for a legislated eight-hour day met with less success. Only British Columbia established an eight-hour day for some areas of employment.52 Even fewer legislative gains were made to support workers’ collective action. British Columbia passed the Company Towns Act in 1919, in response to complaints that employers were using their property rights to control access to workers who lived in company camps. The Act empowered the government to declare camps where 100 or more employees lived to be company towns whose roads had to be open for use by the general public. But this power was never invoked, despite subsequent demands from labour representatives. In Manitoba, the Norris government vainly sought to regain labour support prior to the 1920 election, amending the Industrial Conditions Act, passed the previous year, to recognize formally the right of employers and employees to organize for any lawful purpose and the right of employers and employees to bargain with one another individually or collectively. However, despite its language, the Act did not create any new rights since there were no correlative duties; rather, it merely confirmed the existence of privileges already legally recognized. It also provided an opportunity to submit disputes to a joint council of industry vested with the power to investigate and recommend. Despite its inability to enforce its findings, the council enjoyed some success during the three years of its existence.53 The only other provincial initiative of note was Quebec’s trade union incorporation statute.54 Catholic trade unions and employers supported incorporation, although for very different reasons. Catholic trade unions favoured incorporation for both instrumental and ideological reasons; they wanted to be able to enforce agreements and manage their property, and, simultaneously, to gain broader acceptance. Employers saw incorporation as a means of disciplining unions and holding them responsible for violations of the law. In 1922 the CMA failed to get a resolution passed calling for compulsory incorporation of unions, but by 1924 the Quebec Liberal government saw this as a means of favouring Catholic unions over international ones. The Professional Syndicates Act permitted workers to form incorporated associations that could enforce collective agreements and whose benefit funds could not be seized by employers seeking damages. To prevent

THE POSTWAR CONFRONTAT I O N

125

international unions from participating in the scheme, the law allowed only British subjects to serve as directors and stipulated that foreigners could only constitute up to one-third of the membership.55 In the absence of new institutional supports for collective bargaining in most jurisdictions, trade unions found themselves increasingly vulnerable as labour market conditions tilted the balance of power against them. Membership dropped, as did the level of strike activity. The federal IDIA and provincial trade dispute legislation provided little protection against the employers’ offensive. Although TLC-affiliated unions used the IDIA more frequently, the percentage of victories by employers increased dramatically. Moreover, employers were able to obtain assistance from the courts, police, and militia to enforce their property and contract rights against workers who exceeded the narrow limits for lawful trade union action. The combined effect of labour market weakness and employer exploitation of the pre-war legal regime was devastating.56 Among the first targets of this employer offensive were the industrial unions that had made substantial gains during the war years. Because of the large numbers of workers involved in these conflicts, it was crucial for employers that they obtain police assistance if they wished to operate in the face of mass picketing. The militia, RCMP, provincial police, local police, or private police were all possibilities, and the choice depended on a combination of local circumstances, attitudes of government officials, and past practices. In Nova Scotia heavy reliance was placed on the militia during large disputes in the first half of the 1920s, although both the union and the coal operators deployed a number of legal tactics with varying degrees of success. When in late 1921 Besco announced that it intended unilaterally to reduce coal miners’ wages on 1 January 1922, after the Montreal agreement expired, the union obtained an injunction from Judge Benjamin Russell on the basis that such action prior to conciliation violated the IDIA. However, Justices Humphrey Mellish and James J. Ritchie overruled his decision on 12 January. Although both judges doubted the Act’s constitutional validity, they based their decision on the dubious point that, because the prior agreement made no provision for wage rates after its expiry, the unilateral reductions were not unlawful changes in the conditions of employment.57 Besco also resorted to tactics that had proven successful in previous coal strikes. It cut off credit at the company store, and when a food riot followed in which women actively participated, 12 men were arrested and taken to Halifax, where they were convicted of theft. Harsh sentences of from two to three years were imposed,

126

LABOUR BEFOR E THE LAW

leading J.B. McLachlan to condemn the judiciary in an editorial in the Maritime Labor Herald: . . . a judge is not appointed for his knowledge of the law, nor for his righteousness nor his character. A judge is a capitalist politician who is put upon the bench because he has faithfully served the capitalist as a politician and will faithfully serve them as a judge.58 After months of fruitless negotiation, 12,000 miners struck on 15 August. The Glace Bay mayor, a veteran and former miner, refused the request of Roy Wolvin, Besco’s president, to requisition troops, but Wolvin soon found a more compliant County Court judge, Duncan Finlayson. Twelve hundred troops were dispatched to Glace Bay, where they kept a low profile and did not escort strikebreakers into the collieries. The miners, for their part, maintained tight discipline and confrontations were avoided. Despite this, the Nova Scotia cabinet approved the raising of 1,000 special police for duty in the strike area. With tension mounting, Nova Scotia Premier George Murray intervened and obtained the agreement of the union to allow maintenance work to resume. Shortly thereafter a new agreement was reached, the provincial police force was disbanded, and the troops were withdrawn.59 The King government received numerous protests over the deployment of the militia but, following the Liberal tradition, refused to accept responsibility. During the strike, King expressed his displeasure at the hasty resort to the militia, but when the matter was raised in the House of Commons he claimed there was nothing the government could do to prevent local officials from requisitioning troops in aid of the civil power. He also admitted that his government did not plan to amend the Militia Act to limit the power of local officials.60 The second occasion for bringing the militia to Cape Breton was the Sydney steel strike of 1923. The Amalgamated Association of Iron, Steel and Tin Workers, which was organizing workers at Besco’s Cape Breton steel operations, won a short strike in February when Besco could not get timely military support. Besco learned its lesson and, with the support of the Nova Scotia government, readied for coercive action in the next round. It organized a force of 400 ‘faithful employees’ and the provincial government billeted 1,000 police on Besco’s grounds. After a large May Day celebration, provincial police searched union offices and the homes of leaders for seditious materials and a warrant was issued for the arrest of

THE POSTWAR CONFRONTAT I O N

127

a visiting speaker from Toronto, Malcolm Bruce, on a charge of making seditious utterances. Several weeks later the police left.61 Negotiations between Amalgamated and Besco remained deadlocked over union recognition and a dues check-off. On 28 June the steelworkers walked out again, determined to shut down Besco’s steel operation, despite appeals from international and local leaders for restraint. After strikers clashed with company and city police, militia were again requisitioned and provincial police dispatched. Clashes continued, including an incident in which troops fired shots over the heads of the strikers and a sudden attack by a mounted squad of provincial police on a crowd of strikers and sympathizers. Subsequently, confrontations were rare as police and militia quickly dispersed any gathering of strikers. A number of strikers were arrested and charged with rioting and unlawful assembly.62 When the Cape Breton miners struck on 3 July to support the steelworkers’ demands and protest the presence of police and militia, they were defeated by the arrest of J.B. McLachlan and Dan Livingstone for sedition and the intervention of John L. Lewis. This spelled the end of this effort to establish industrial unionism in the steel mills. Trials of those arrested during the riots were conducted in the fall. Six strikers were sentenced to two years in the penitentiary while another five received sentences of 40 days in jail and were bound to keep the peace for two years.63 Labour leaders of all stripes protested the use of troops in Cape Breton and the indiscriminate application of force, while local officials and the establishment press defended the actions of the police. Ottawa, however, was sympathetic to labour’s concerns. Early that fall King appointed a Royal Commission, chaired by Dr J.W. Robertson, president of the Canadian Red Cross, to investigate the causes of industrial unrest. In a confidential letter to Robertson, King suggested that the Commission should consider recommending changes to the Militia Act because it allowed ‘corporations to take advantage of the powers which can be exercised, through any Judge to whom appeal may be made’. Despite recommending a non-union employee representation plan and finding that the calling out and keeping of the troops were justified, the Robertson Commission complied with the wishes of its creator and recommended that the Militia Act be amended to require the concurrence of the provincial Attorney General in requisitioning troops.64 Late in the 1924 session the government introduced a bill implementing this recommendation and also making the province, not the municipality, responsible for the militia’s costs. Sharp debate ensued.

128

LABOUR BEFOR E THE LAW

The Maritime Labor Herald depicts the coercive forces deployed by Besco to defeat the striking steelworkers. (Maritime Labor Herald, 4 August 1923.)

E.M. Macdonald, a Nova Scotian and Minister of National Defence, disclosed that the combined cost of the 1922 and 1923 militia interventions was $162,916 and that the municipalities refused to pay. Other Nova Scotia members opposed making the provinces financially responsible for the cost of intervening in strikes that were of national importance. Only William Irvine and J.S. Woodsworth, two Labour members, urged greater control over the deployment of the militia. Irvine thought that judges, because of their ignorance, were

THE POSTWAR CONFRONTAT I O N

129

‘surely the last persons who should be vested with authority in the matter’ and wanted federal authorities to be given discretion to refuse troop requisitions. Woodsworth thought the use of militia in industrial disputes was fundamentally unfair. ‘We can call on the militia to quell a disturbance in order to protect property; we never call on the militia to protect the rights of the men who are working.’ The bill was passed with few modifications.65 Events the following year demonstrated that these amendments did not prevent the use of troops in Cape Breton. When negotiations between Besco and the UMWA stalled, Besco pressured the miners by reducing hours and cutting credit at company stores. On 3 June the union voted for a 100 per cent strike, including vital maintenance staff. Three thousand men and women marched to seize control of the New Bedford power plant, where they were met by Besco police who charged into the crowd firing their revolvers, killing one striker and seriously injuring two others. The crowd overwhelmed the police, dragged them from their horses, and beat them. Thirty Besco police were hospitalized. The provincial police were immediately dispatched and the ever reliable Judge Finlayson signed a requisition for the militia, which, as required by the recently amended Militia Act, was approved by the Attorney General. Within days an estimated 2,000 troops were in Cape Breton. The strike-related violence continued, however, as company stores and other facilities were looted and burned throughout the month of June. The provincial government was defeated in an election held later that month and the new Conservative government withdrew, and subsequently dismantled, the provincial police force. Two months later, in August 1924, the strike was settled and the troops were withdrawn.66 Why was armed force used so frequently and so massively in Nova Scotia but not in other provinces? A number of factors explain this pattern. Undoubtedly, the size of the conflicts was significant. Each strike involved thousands of workers. Moreover, these strikes attracted widespread support from tightly knit working-class communities. Local politicians could not always be counted on to back fully Besco’s demands for protection, although Besco was always able to find a local judge ready to do its bidding. As well, the provincial government tended to be sympathetic to Besco’s demands if only because of its dependence on revenue from coal-mining. Moreover, it refused to commit to the establishment of a permanent provincial police force.67 The infrastructure of state coercion was also invoked by employers during the Alberta coal strikes of the same period, but the type and intensity of interventions were different. As in Nova Scotia, the

130

LABOUR BEFOR E THE LAW

UMWA’s

co-operation in defeating radical unionism did not save it from the postwar employer offensive, which began in 1922 when the last collective agreement entered into under the authority of the director of coal operations expired. The Alberta operators’ demands for steep wage cuts and an end to the closed shop and check-off were resisted by the coal miners. The ensuing strike was finally settled in August 1922 after federal officials intervened. But the settlement was not comprehensive; the Edmonton coalfield was unorganized and efforts to extend the agreement were strenuously opposed. A general strike of Edmonton coalfield miners was declared during the winter of 1922–3; 800 miners joined while another 300 remained at work, resulting in picket-line confrontations. Unlike Nova Scotia, Alberta had a well-established provincial police force capable of assuming primary responsibility for policing picket lines. Therefore, when trouble erupted, Alberta Provincial Police officers and municipal police were deployed. Hundreds of strikers were arrested and charged with a variety of offences, including vagrancy, assault, intimidation, obstructing a police officer, and unlawful assembly. Most sentences were light, but a few strikers, convicted of more serious assaults, served time in jail. The strike was lost, but only in part because of the use of state force to protect rights of property and contract. The refusal of the federal Minister of Labour, James Murdock, to intercede because he viewed the union as Communist-dominated also contributed to the strike’s demise.68 The RCMP did not play a direct role in policing strikes during this period. Rather, it was used as a spy agency, keeping suspect organizations under surveillance, and as a mobile reserve force assisting local authorities as needed. After the election of the Mackenzie King, the use of RCMP to police industrial disputes was even more constrained. In a debate over whether to include the RCMP in a reformed Department of Defence, King expressed the view that ‘if we wished to create an industrial disturbance of very serious proportions, possibly the best way we could go about it would be to order the Mounted Police into those areas.’ More generally, he rejected a role for direct federal policing of strikes on constitutional grounds. There was, however, wide parliamentary agreement that the RCMP should continue its surveillance function, and J.S. Woodsworth’s attempt to restrict RCMP operations to the northern territories because they had acted as spies and provocateurs during the Winnipeg General Strike was soundly defeated.69 Private security forces also played a prominent role in defeating many strikes. Sometimes hired men were sworn in as special constables and vested with legal powers, but in most instances they had no

THE POSTWAR CONFRONTAT I O N

131

public authority and could only operate legally on their employer’s property. As in the past, excesses were often overlooked by local authorities, though on some occasions state officials attempted to punish unlawful vigilante behaviour. In 1920, for example, seven men were arrested, including the president of the local war veterans’ association and a member of the Saskatchewan Provincial Police, after OBU organizer P.M. Christophers was kidnapped in Estevan, Saskatchewan, driven across the border into the United States, and threatened with violence if he returned. Although a jury acquitted the accused, the police commissioner suspended the officer involved.70 In the overwhelming majority of cases, local police had sufficient resources to deal with picket-line confrontations and protect the right of employers to continue production during a strike or lockout. Most labour disputes occurred in urban areas with established police forces and involved small groups of workers. After 1920 there was little threat that a strike by a particular group of workers would flare up into a class-wide confrontation. There were, however, variations in the attitudes of police and local authorities towards picketing and this affected the level of support employers received. The specific response of police and the courts to the presence of women on the picket lines and in crowds is difficult to gauge, given the sporadic evidence on this point. Strikes in mining communities were characterized by a high level of community involvement, including that of women and children. For example, in the confrontations at New Waterford, Nova Scotia, in 1925, one observer reported that ‘women clawed and scratched and in one case they literally tore the clothes off one policeman.’71 Yet, no women were arrested. Patriarchal attitudes and codes of behaviour frowned on public violence against women, especially when their behaviour could be said to be motivated by a desire to defend their families. This perceived reticence was consciously exploited on some occasions. For example, during the Edmonton coalfield strike of 1922–3, miners’ wives were placed at the front of the picket line, though on this occasion the police were not restrained by gender norms—women were arrested and beaten. As a result, union allegations of police misconduct were taken more seriously than usual and the Edmonton municipal council requested Justice W.L. Walsh, of the Alberta Supreme Court, to conduct a judicial inquiry. Walsh’s report, however, skilfully countered the ‘gender card’ played by the union by invoking a different gender stereotype: the hysterical woman. ‘I am satisfied that very many of the women who were in the crowd were in a state of hysteria which made them largely irresponsible at the time and renders them incapable now

132

LABOUR BEFOR E THE LAW

of giving reliable account of the events of which they speak.’ Thus, in one rhetorical breath he was able to establish the misbehaviour of the women, their lack of responsibility for their actions, and the unreliability of their present accounts of mistreatment. With the women’s claims neutralized, the path was clear for a complete exoneration of the police: ‘The feeling over the strike was tense, acts of lawlessness were on the increase, a firm hand was needed to keep within bounds the growing tendency to defy the law. That firm hand was applied in this instance but with no unnecessary harshness.’72 Women also participated on picket lines as strikers, despite their limited unionization. On some occasions, gender may have worked in women’s favour, moderating the use of coercion and encouraging third-party interventions. This can be seen in the lockout of female members of the United Textile Workers of America, Local 1336, by the Avon Hosiery Company in Stratford, Ontario, at the end of August 1920. The locked-out women ignored a warning by the police chief that they could have only four pickets in the area of the factory and 15 were arrested, including the union leaders and two who were transferred to juvenile court. All 15 were charged with persistently following and eight were also charged with disorderly conduct. The arrests galvanized community support for the strikers. At a mass meeting organized by the Stratford Trades and Labour Council on the Sunday following the arrests, a resolution was passed to establish a defence fund and the leaders of the TLC dispatched their counsel, J.G. O’Donoghue, to provide legal representation. Eventually, all the charges were dropped. In mid-October, Walter Rollo, the Ontario Minister of Labour, was contacted by the women and he arranged for the federal fair wages officer, E.N. Compton, to meet him in Stratford and mediate the dispute. A weak compromise was accepted that allowed the women to return to work with a promise that union members would not suffer discrimination, but without a wage increase or union recognition.73 Injunctions severely limiting picketing also became more frequent. Although the first targets were industrial unions or amalgamations, the TLC became concerned about the judicial narrowing of the freedom to strike and picket. For its 1920 convention, the TLC obtained a legal opinion from O’Donoghue, who proposed amendments to the Criminal Code making it clear that peaceful picketing was not criminal ‘watching and besetting’ and that sympathetic strikers were not criminal conspirators. These recommendations were incorporated into the TLC’s legislative program and presented to the

THE POSTWAR CONFRONTAT I O N

133

government in February 1921. In the meantime, O’Donoghue drafted instructions to strikers designed to minimize the risk of legal intervention. Pickets were advised not to be in groups of more than three, to keep moving if instructed to do so by police, not to persist in speaking to strikebreakers who ignored their advances, not to use threats or condone violence, and generally to obey police instructions and not take the law into their own hands.74 Prime Minister Meighen’s response was to treat peaceful picketing as an oxymoron: ‘All experience and evidence upon the subject goes to show that watching and besetting for the purpose of peaceably persuading is really a contradiction in terms. The truth is that picketing—however conducted— . . . must savour of compulsion.’ He was equally hostile to sympathy strikes, characterizing them as civil conspiracies interfering with the rights of individuals and the public. This intolerant attitude was shared by the judges who heard the first reported postwar injunction case, Rother v. ILGWU. At trial, Justice F.S. Maclennan emphasized the importance of individual rights to contract without interference. Sounding a recurrent theme, he held that the omission of the peaceful picketing exemption from the Criminal Code reflected the intention of Parliament to make such activity criminal behaviour, although he left open the possibility that some forms of peaceful picketing might be legal provided there was no deterrent effect. Invoking the tropes of individual rights and the formal equality of labour and capital, five Quebec Appellate Court judges fully endorsed Maclennan’s approach.75 Subsequent cases produced a somewhat broader range of judicial opinion, reflecting the existing tensions in the case law. Some judges treated virtually any form of picketing as watching and besetting. This approach was most common where the picketing aimed to discourage the public from patronizing an establishment. For example, in a case of picketing in front of the Windsor Theatre in Toronto, Justice H.E. Rose held that ‘even the most peaceable picketing of the approaches to a theatre is likely to amount to coercion in the case of timid theatregoers.’76 Not all judges, however, took such a restrictive approach. Organized labour’s greatest legal victory came in the Ontario Court of Appeal when a unanimous court dissolved an interim injunction because the employer failed to present the court with adequate material to support its claim. As well, the court strongly rejected the view that injunctions could be issued to suppress crime. According to Justice William E. Middleton: ‘Government by injunction is a thing abhorrent to the law of England and of this

134

LABOUR BEFOR E THE LAW

Province.’ Moreover, the court held that, absent proof that trust funds were held in the union’s name, individual members could not be sued in a representative capacity in a tort action.77 The uncertain state of the law arising from these judgements was an ongoing concern of the TLC, which annually passed resolutions calling for reinstatement of the peaceful picketing exemption and for legislation granting trade unions immunity from damage actions and injunctions. No progress was made on this legislative agenda.78 The question of the legal status of trade unions was also raised by a number of actions. Here unions met with greater success. The most important case, Chase v. Starr, arose out of a lawsuit by the Brotherhood of Locomotive Engineers against a former officer for misappropriation of trade union funds. Although the trial court judge dismissed the action on the ground that trade unions were unlawful associations in restraint of trade, the majority of judges on the Manitoba Court of Appeal and, on further appeal, the Supreme Court of Canada rejected such a view as untenable, both because it would leave the owners of property without a remedy and because it seemed inconsistent with official support for collective bargaining manifested in provincial and federal trade dispute legislation.79 Thus, the return to industrial voluntarism was characterized by a revival of the pre-war infrastructure of coercion. Although at first glance there might appear to be a contradiction between voluntarism and the increased use of local police, criminal charges, and civil actions and injunctions by employers, the reality was that coercion was always essential to the pre-war regime. Voluntarism was imposed on workers through laws that limited their freedom to act collectively. The ideological trick was to hide the coercion, or at least to obscure its class character, by making it appear that the law merely protected the rights of declassed individuals. But the problem of negotiating the ideological as well as the operative boundary between voluntarism and coercion was always a difficult one, exacerbated in the postwar period by the inability of the state to construct and institutionalize an accord between responsible trade unions and major employers. A parallel problem emerged at the level of constitutional discourse and practice. The provinces were given exclusive jurisdiction over property and civil rights in the province. This was the domain of the market where consensual relations supposedly prevailed. The federal government had jurisdiction over criminal law and peace, order, and good government, covering much of the realm of coercion. The boundary between federal and provincial jurisdiction over labour

THE POSTWAR CONFRONTAT I O N

135

Table 3 Total Union Membership in Canada and as a Percentage of Non-agricultural Paid Workers, 1911–1948

Year

Total Union Membership

Percentage of Non-agricultural Paid Workers

1911 1912 1913 1914 1915 1916 1917 1918 1919 1920 1921 1922 1923 1924 1925 1926 1927 1928 1929 1930 1931 1932 1933 1934 1935 1936 1937 1938 1939 1940 1941 1942 1943 1944 1945 1946 1947 1948

133,000 160,000 176,000 166,000 143,000 160,000 205,000 249,000 378,000 374,000 313,000 277,000 278,000 261,000 271,000 275,000 290,000 301,000 320,000 322,000 311,000 283,000 286,000 281,000 281,000 323,000 384,000 382,000 359,000 362,000 462,000 578,000 665,000 724,000 711,000 832,000 912,000 978,000

— — — — — — — — — — 16.0 13.6 13.2 12.2 12.3 12.0 12.1 12.1 12.6 13.1 15.3 15.3 16.7 14.6 14.5 16.2 18.2 18.4 17.3 16.3 18.0 20.6 22.7 24.3 24.2 27.9 29.1 30.3

SOURCE:

F.H. Leacy, ed., Historical Statistics of Canada, 2nd edn (Ottawa: Statistics Canada, 1983), E175–6.

136

LABOUR BEFOR E THE LAW

relations depended in part on whether labour relations were construed primarily as a realm of consent or of coercion. The jurisdiction of the federal government to enact the IDIA had been upheld by the court on the ground that it was ‘not legislation affecting private or civil rights, but, in the interests of the public generally, it purports to create offences, and to prevent a breach of the public peace and good order.’80 In short, because of the danger posed by labour unrest, the exercise of coercive powers by the federal government was constitutionally permissible, even if only to compel conciliation. Similarly, during the war emergency and its immediate aftermath, the exercise of extraordinary powers by the federal government under its responsibility for peace, order, and good government was hardly questioned. The scope of the federal power, however, was always politically and legally contentious. In the postwar period, the King government favoured a narrow interpretation of its jurisdiction. For example, when the federal government was urged to pass legislation protecting the right to organize after the Powell River Paper Company in British Columbia fired its employees for joining a union, James Murdock, King’s Minister of Labour, pleaded the absence of federal jurisdiction over matters of property and civil rights. J.S. Woodsworth responded by asking why it was that the federal militia could be called out in Nova Scotia to protect the property of mine owners, but the federal government could not protect the civil rights of workers. No answer was offered. Clearly, it was no easier to delineate the boundary between federal and provincial jurisdiction than it was to distinguish the realm of consent from that of coercion. In any event, King was determined not to expand the federal government’s role in labour, and constitutional arguments could be conveniently, if not elegantly, constructed to draw the line where he wanted it.81 King was not constructing constitutional arguments in a vacuum. Under Lord Watson the Judicial Committee of the Privy Council adopted a decidedly decentrist approach to the interpretation of the constitutional division of powers in Canada in the late nineteenth century, and this approach reached its height under the influence of Viscount Haldane in the postwar era.82 IDIA jurisdiction over street railways was unclear. In 1917 the Minister of Labour adopted the practice of appointing boards of conciliation in municipal street railway disputes only if no jurisdictional challenge was raised by the municipality.83 The failure to adhere to this policy led to the Snider case. Five out of the seven Canadian judges who heard the case would have upheld the legislation as a valid exercise of the federal government’s

THE POSTWAR CONFRONTAT I O N

137

criminal law power: ‘[S]uch disputes not infrequently develop into quarrels wherein or by reason whereof public wrongs are done and crimes committed, and the safety of the public and the public peace are endangered and broken.’ The memory of Winnipeg was still fresh in Figure 1 Trade Union Membership in Canada, 1911–1948 Thousands

Thousands

900

900

800

800

700

700

600

600

500

500

400

400

300

300

200

200

100

100

0

0

1911 1913 1915 1917 1919 1921 1923 1925 1927 1929 1931 1933 1935 1937 1939 1941 1943 1945 1947

SOURCE:

Department of Labour, Thirty-sixth Annual Report on Labour Organization in Canada (Ottawa: King’s Printer, 1948), 11.

138

LABOUR BEFOR E THE LAW

the minds of some of these judges, and to uphold federal jurisdiction they identified state coercion as a regular feature of industrial relations. By contrast, for the JCPC in England, where industrial voluntarism reigned, it was obvious that the IDIA dealt with property and civil rights. The federal government failed to prove that industrial strife constituted an emergency ‘putting the national life of Canada in unanticipated peril’. State coercion, thus, was not fundamental to relations between labour and capital, so they could be treated, in law, as ordinary contractual relations where the substratum of economic coercion is constitutionally irrelevant.84 Despite his support for voluntarism, this was not the result King, who was the author of the IDIA, desired. The Canadian government intervened in the Snider case to support its jurisdiction over labour disputes that threatened national economic policy. But the Privy Council’s decision really only took King one step further than his government was already prepared to go in conceding the field to the provinces and the courts. The resulting fragmentation of jurisdiction over industrial relations did not radically alter the legal arsenal, but it did preclude the development of a national system, making it more difficult in the long run to achieve major institutional reforms. By the end of 1924, the labour movement was weakened but not devastated. Membership dropped from a high of 378,000 in 1919 to 261,000, and total union membership in Canada would not again achieve that 1919 mark until 1937 (see Table 3 and Figure 1). Nonetheless, it was still considerably higher in 1924 than it had been at its pre-war peak of 176,000 in 1913. Militancy, however, was down sharply, even by pre-war standards. From 1901 to 1913 there were, on average, 172 strikes annually in Canada. In 1924 there were only 75, a twentieth-century low. Stable collective bargaining relationships had been established in a few sectors, like the railways, the paper industry, and the men’s clothing industry in Toronto, but the cost for labour was a willingness to moderate demands and play the game according to rules that systematically favoured the interests of employers. Unions that did not accommodate or could not find willing partners were forced to battle employers, who generally enjoyed advantageous labour market conditions and access to state coercion if collective action exceeded the narrowly circumscribed sphere allowed by law.85

6

Industrial Voluntarism in a Prosperous Interregnum, 1925–1929

Business prosperity returned to much of Canada late in 1924 and lasted until the Great Depression in 1929. Rapid economic growth in this period was based on the exploitation of primary resources and expansion in manufacturing, much of it led by large corporations. The conjuncture of economic growth in settings that brought large numbers of workers together might have been favourable for union growth, but remarkably little progress was made. Although union membership increased nearly 18 per cent between 1925 and 1929 and the success rate of strikes improved, union density remained stagnant and the number of strikes was low.1 The lack of labour success was partially attributable to the internal problems of trade unions. Traditional craft unions affiliated with the TLC survived the first half of the decade by cautiously consolidating within their areas of strength. They evinced little interest in organizing semi-skilled industrial workers in new and expanding massproduction industries and in resource industries that had resisted earlier unionization efforts. Militant industrial unions were severely weakened by their devastating postwar losses. Nevertheless, these unions revived in the second half of the decade and were responsible for the major organizing drives and manifestations of labour militancy in the period. The formation of the All-Canadian Congress of Labour (ACCL) in this period added to the fragmentation, but its nationalist orientation did not lead it to undertake significant new organizing.2 The most important reason for limited trade union growth, however, was employer opposition. The success of the open-shop drives earlier in the decade left employers well positioned to reap the benefits of economic growth. They were in no mood to permit industrial 139

140

LABOUR BEFOR E THE LAW

unionism among their employees and used carrot-and-stick tactics to prevent it. Non-union employee representation plans and corporate welfare schemes, first developed earlier in the decade, combined with increasing real wages for many Canadian workers, lessened the appeal of trade unions by convincing workers that their interests would be looked after by their employers.3 Still, where positive incentives proved insufficient to keep workers away from unions or to dampen union militancy, employers adopted more aggressive tactics. Company spies were recruited to keep employers informed of union activity, and organizers and activists faced the threat of being dismissed and blacklisted, actions that were perfectly legal within the existing regime. These tactics, combined with employers’ superior bargaining strength and the weakness of fledgling unions, were often sufficient to defeat any trade union challenge to managerial power and control.4 If not, employers had ample access to an infrastructure of coercion and there was little effective pressure to strengthen the infrastructure of conciliation and accommodation, or to reduce trade unions’ legal liabilities. The JCPC decision in the Snider case was issued in January 1925, but despite its assignment of labour relations to provincial jurisdiction, the content of and institutional arrangements for Canadian labour law hardly changed. The TLC pressed for an amendment to the British North America Act to restore federal jurisdiction and maintain uniformity in labour law, yet even if the federal government had been in favour of such a measure it would not have been acceptable to the premiers of Ontario and Quebec, both strong provincial rights advocates. Instead, the Canadian government amended the Industrial Disputes Investigation Act in 1925 to keep its reach within the constitutional limits set by the courts. As before, the statute only applied to labour disputes in mining and on public utilities such as railways, but now those disputes had to be in connection with ‘any work, undertaking or business which is within the legislative authority of Canada’ for the IDIA machinery to be invoked. Two exceptions, however, were made: the Act could apply when a national emergency was declared or when a province chose, by statute, to make the Act apply to disputes within its jurisdiction.5 A number of provinces took up the invitation, including British Columbia, Manitoba, New Brunswick, and Saskatchewan. Two other provinces, Alberta and Nova Scotia, initially opted to exercise their power to create local industrial disputes machinery. In Nova Scotia, the Liberal government passed the Industrial Peace Act (IPA) in the midst of the 1925 Cape Breton miners’ strike against Dominion Coal.

A PROSPEROUS I NTERRE G N U M

141

That Act provided for IDIA procedures and allowed for binding arbitration on the application of a party to a trade dispute. Both the UMWA and Besco strongly opposed binding arbitration and that part of the law was never declared in force. The following year the newly elected Conservative government of Premier Edgar N. Rhodes scrapped the IPA and made the federal IDIA applicable within the province. In Alberta, the United Farmers of Alberta government passed the Labour Disputes Act. This scheme resembled the IDIA except that it applied to all disputes involving employers with 10 or more workers and it permitted strikes or lockouts prior to conciliation. Two years later, at the request of the Alberta Federation of Labour, the government made the federal IDIA apply to provincial mining and public utilities disputes, leaving other disputes under the provincial scheme.6 The three provinces that did not opt into the IDIA in the 1920s were Ontario, Quebec, and Prince Edward Island. For PEI industrial relations legislation was largely irrelevant given the low level of trade union activity. The refusal of Ontario and Quebec to opt into the federal legislation reflected their governments’ strong views on provincial rights and the lack of any pressing need for such legislation, given the relatively quiescent state of labour relations in the industries that would be covered. It was only in 1932, when the level of strike activity began to increase rapidly, that the governments of Ontario and Quebec, at the urging of the TLC and its provincial counterparts, opted into the federal scheme.7 Although the King government was not prepared to push for a constitutional amendment, it did give the TLC some satisfaction by enacting the amendments that had been defeated by the Senate in 1923 and 1924. This permitted the Minister of Labour to establish a board when the employer refused to confer with a union representing its employees, introduced penalties against employers who altered terms prior to the issuance of a board report, and placed the onus on the party seeking to alter existing terms and conditions to apply for a board. These changes were welcomed by the TLC and denounced by Canadian employers, who claimed it put an unfair burden on manufacturers who needed to reduce wages immediately.8 The appointment of boards in disputes where employers refused to confer with the union representing its employees embroiled them in recognition disputes. In principle, boards favoured the right of workers to organize and bargain collectively, but they could not compel employers to accept such arrangements. Instead, boards sought to promote compromises reflecting the balance of power. This often involved the substitution of an unaffiliated employee committee for a

142

LABOUR BEFOR E THE LAW

trade union. Despite its limitations, many labour leaders continued to support the IDIA, seeing it as a mechanism that aided weak unions by giving them a modicum of support in the face of employer hostility. For conservative union leaders, there was an additional reason for backing the IDIA: administrators were likely to favour them in disputes with more radical unions.9 The legal infrastructure of coercion changed little in this period. The law of picketing received its first consideration by the Supreme Court of Canada in Rex v. Renners, a case arising from ongoing disputes in the Alberta coalfields in 1925. The case raised the question of whether peaceful picketing constituted unlawful watching and besetting. Two provincial courts of appeal had already said that it did, but the mine workers wished to test that proposition based on English case law that had not been previously considered by the courts.10 The majority of the Alberta Court of Appeal, while doubting that the more recent English case law applied in Canada or changed the English position, chose to decide the case on the narrower ground that the trial judge had made a finding that the picketing in question was not peaceful, even though physical force was not used. In short, it left open the possibility that peaceful picketing might be legal, but defined it narrowly so that it did not include picketing that ‘constitute[d] a menace and practical compulsion by moral force even if no physical force were contemplated.’11 Justice A.H. Clark dissented. In his view picketing itself was not a crime unless accompanied by unlawful behaviour such as violence. In the particular case, Justice Clark could not find the element of wrongfulness. The Supreme Court of Canada found it unnecessary to declare on the legality of picketing in general. Rather, it held that if picketing was carried on in such a way as to constitute a nuisance, trespass, or unlawful assembly, then it was an offence under the Criminal Code. In the case at hand, the court held there was evidence before the trial judge to support his finding that the picketing was wrongful and, therefore, the conviction was upheld. For labour, the result was hardly satisfactory. While the court did not declare all picketing to be criminal watching and besetting, its decision did not vindicate the right of workers to picket peacefully. Rather, it gave trial judges all the leeway they needed to narrow the scope for lawful picketing.12 The matter was taken up by the TLC at its convention in September 1926. A special committee issued a report highly critical of the judiciary: ‘It is therefore obvious that so long as trade unionists are left to the constitution, temper, passion and caprice of judges using their own discretion, and ignoring the stability of law, their rights will be

A PROSPEROUS I NTERRE G N U M

143

repeatedly infringed and the work of destroying their organizations will be proceeded with.’ The committee called on the TLC executive to lobby for amendments to the Criminal Code and for the provincial executives to lobby for provincial legislation limiting the power of courts to issue injunctions restraining picketing. In the meantime, the committee recommended that instructions to picketers drafted by the TLC solicitor, J.G. O’Donoghue, in 1920 be adopted and followed. This cautious approach was challenged by Communist labour activists, who called for defiance of the law, mass meetings, and a national day of protest to back worker demands. More conservative trade unionists flatly rejected such tactics. Paddy Draper, the TLC’s secretary-treasurer, replied that the TLC ‘could not stand for violence or violation of the law.’ The majority of delegates endorsed the committee’s original recommendations and these became a staple item in the ritual presentation of TLC demands to the federal government each January. Ironically, a subsequent attempt by the Communistdominated Toronto local of the International Fur Workers’ Union (IFWU) to have the TLC endorse a national day of protest in support of the right to picket prompted the Minister of Labour, Peter Heenan, to seek Mackenzie King’s permission to promise government action in his upcoming speech to the 1927 convention. King refused, but Heenan need not have worried. The convention deleted the call for a national protest from the resolution. As a result, quiet lobbying continued, without success, just as the radicals predicted.13 The labour movement also continued to demand repeal of the Criminal Code and Immigration Act amendments passed in response to the Winnipeg General Strike. Indeed, J.S. Woodsworth and A.A. Heaps, two Labour members from Manitoba, made it a condition of their support for the fragile King government after the October 1925 election that these measures be repealed. The Liberals fulfilled their promise, but the bill passed by the House of Commons was defeated by the Senate, where a Conservative majority prevailed. Similar bills were passed by the Commons in subsequent years but met the same fate. In 1928 the government finally succeeded in removing the 1919 amendments from the Immigration Act. Non-citizens, however, could still be deported for political reasons after being convicted of an offence in an open trial before a jury.14 Judicial decisions regarding the civil liability of trade unions and their legal status also failed to produce any significant reform. In British Columbia a majority of the Court of Appeal held that the peaceful distribution of pamphlets asserting that an employer was unfair to labour was criminal watching and besetting for which an

144

LABOUR BEFOR E THE LAW

employer could recover damages. Moreover, the court narrowly read the scope of the immunity granted by the province’s trade union statute. It did not protect against liability for unlawful acts and the immunity afforded to the communication of facts did not extend to assertions of opinion. On a more positive note, in a case not involving picketing, the Ontario Court of Appeal held that the threat to withdraw labour for the purpose of protecting union members was not a civil conspiracy to injure.15 As to their legal status, the courts continued to find that, at common law, unions could neither sue nor be sued in their own name. Their lack of legal status, however, did not protect them absolutely from damage actions by employers. Trade unions could be sued by way of a representative action, although their exposure varied from province to province. The position in Ontario continued to be that to recover damages against a union there must be a trust fund from which the damages could be claimed. Earlier decisions in Manitoba and Nova Scotia had awarded damages against a union in the absence of a trust fund. The British Columbia Court of Appeal in Schuberg followed those cases. Unregistered unions were better off in Quebec, where it was held that representative actions could not be brought under the civil law.16 Union efforts to enforce their collective agreements despite their lack of legal status met with little success. Indeed, in one instance, the court refused to permit the International Ladies’ Garment Workers’ Union (ILGWU) to enforce its agreement with the Toronto Cloak Manufacturers’ Protective Association because trade unions with militant objectives were illegal at common law. Consequently, the court ruled the contract was unenforceable.17 The stability of the ‘voluntarist’ legal regime and its supporting structure of coercion, coupled with little positive state support for collective bargaining, left employers with ample resources to combat unions as the need arose. Often, this could be done simply by relying on superior bargaining power and the absence of significant legal constraints on employers’ liberties. Thus, when the Rapid Grip Engraving Co. in Toronto decided to rid itself of unionized photo-engravers, it imported workers from the United States and Europe. The union complained to Peter Heenan, the federal Minister of Labour and he advised the employer that it had violated the Alien Labour Act by importing American workers under contract. Heenan subsequently reported to the House of Commons that the Americans had been discharged, but not the Europeans, as they were not affected by the Act.

A PROSPEROUS I NTERRE G N U M

145

He also informed the House that the government had no plans to introduce further restrictions on the hiring of contract labour overseas.18 In larger settings, where mass action could be organized, employers were more likely to invoke active state intervention. For example, in Alberta radicalized miners joined the Mine Workers’ Union of Canada (MWUC) to oppose concessions accepted by the UMWA leadership. One of the first confrontations occurred in the Drumheller subdistrict, where the Alberta Block Coal Co. operated with replacement workers. Striking miners picketed and occupied positions in the surrounding hills overlooking the approaches. The Alberta Provincial Police decided to remove picketers from one of the hills immediately to the north of the company’s powder house because of complaints from the company. A raid was executed, and one of the miners, Lambert Renners, was shot and seriously wounded after he threw stones at an officer and then tried to flee. Renners was arrested along with four or five others and charged with watching and besetting. His case was the one selected for appeal to the Supreme Court of Canada.19 These actions exacerbated the conflict and the level of picket-line violence. In one incident 500 pickets attacked a force of foremen, strikebreakers, and police entering the mine property, wrecking automobiles and assaulting individuals. Nearly 100 militants were arrested over the summer. In September an application for an injunction was made before Justice J.R. Boyle in Calgary. Surprisingly, he refused the application, notwithstanding the evidence of violence, because he believed it could be stopped by the police if they were given proper instructions by the provincial Attorney General. This proved to be a temporary setback. A District Court judge was found who was willing to issue the injunction. Police were reinforced and the strike was broken.20 This still left the outstanding charges against the arrested workers unresolved. Recognizing the enormous costs involved in defending the accused, paying fines, and supporting the families of those incarcerated, Communist Party of Canada leader Tim Buck, following earlier Comintern suggestions, organized a meeting in Toronto to establish a labour defence group. A permanent organization, the Canadian Labor Defence League (CLDL), emerged, and was headed by Florence Custace. With the money raised, the mine workers were able to retain a well-known Alberta lawyer, Alexander McGillivray, to defend the major cases, but he met with little success. Most striking workers were convicted and given lengthy jail terms of up to 40 months.21 Coalfields in eastern Canada were relatively quiet after the 1925 defeat. The OBU attracted some support in the region and was not met

146

LABOUR BEFOR E THE LAW

with state repression. For example, when coal miners affiliated with the OBU struck Minto, New Brunswick, coal operators in 1926, the government appointed a Royal Commission. Even after the colliers rejected the Commission’s recommendations and resumed their strike, the Commission reconvened and persuaded the operators to make concessions to reach a settlement.22 In Nova Scotia a different strategy was used to contain the last vestiges of militancy in the coalfield. The provincial Royal Commission appointed in October 1925 to examine the coal-mining industry blamed the antagonism on the operators’ opposition to the UMWA and on the ‘introduction of Communistic theories and aims into ordinary industrial relations’. The Commission recommended ‘open and frank acceptance of the men’s Union’ by the employer, but called on the men to give their leaders ‘power and authority to negotiate on their behalf’. In short, it demanded a more bureaucratic, business unionism as a condition of recognition. An agreement was eventually negotiated between the UMWA and Besco for 1926, but only after the province vigorously intervened to preserve the dues check-off. The following year the legislature amended the Coal Mines Regulation Act to make deductions for union purposes mandatory when requested in writing by an employee. After the contract was signed, the UMWA initiated strikes to enforce a closed shop, targeting miners who had joined the OBU. Ironically, it was the OBU that resorted to law in an attempt to stave off this attack. It unsuccessfully sought the appointment of an IDIA board, had UMWA officers charged with intimidation, and sought an injunction to bar employers from checking off dues for the UMWA from the wages of its members. These attempts to use the law ultimately failed. Although a local magistrate committed the accused officials to trial and an indictment was issued by the grand jury, the provincial Attorney General intervened to stay the prosecution. The injunction application was also successful at first instance, but a County Court judge subsequently upheld the UMWA’s contention that, under the collective agreement, all employees were its members and liable to a deduction. The decision was upheld by the Nova Scotia Supreme Court, which finessed or ignored the problem of enforcing a collective agreement to reach this result. In sum, the actions of the Rhodes government and the Nova Scotia Supreme Court promoted responsible trade unionism in the coalfield by protecting the UMWA from employer recalcitrance and by assisting it in its battles with radicalism, even if this meant bending or ignoring the law. The institutional and legal foundations for an altered regime of industrial legality were tentatively being laid.23

A PROSPEROUS I NTERRE G N U M

147

Although conflict in the coalfields produced the most dramatic confrontations and interventions, the most frequent strikes during this period occurred in the garment and fur industries, centred in Montreal and Toronto. Three international unions dominated this sector: the ILGWU, the Amalgamated Clothing Workers of America (ACWA), and the IFWU. Although all were TLC affiliates, they operated as semi-industrial unions representing workforces with an unusually high proportion of women and immigrants. Communists were active within these unions and militancy was often high, resulting in numerous strikes. These industries were highly competitive and the unions sought to establish schemes of joint regulation that, with the co-operation of major manufacturers, would establish industry-wide standards. Outside the men’s clothing trade in Toronto and, to a lesser extent, Montreal, these arrangements failed to take root. In the absence of voluntary employer co-operation, unions lacked the organizational ability to impose and enforce industry-wide employment standards. Moreover, the legal regime did not support this regulatory endeavour.24 The condition of partial unionization in an intensely competitive and unstable industry fuelled bitter labour conflicts. The use of scabs was common, leading to picket-line confrontations that resulted in arrests, criminal charges, injunctions, and damage actions. For example, during a 1926 strike by the ACWA in Montreal to extend union conditions to non-union shops, one manufacturer transferred its operations to St Hyacinth. The union picketed the new site and clashes followed. Four picketers, all female teenagers, were arrested and charged with intimidation and assault, although the charges were subsequently dropped for lack of evidence. Some struck employers obtained an injunction and successfully sued nine union officials for their strike-related conduct. One year later, during another ACWA strike in Montreal, two female picketers were arrested and subsequently convicted of intimidation.25 Similar conditions prevailed in the boot and shoe manufacturing industry, where the unions were weaker and less militant during this period. There was, however, one major confrontation. In November 1925, 2,100 boot and shoe workers in Quebec City struck 14 factories over substantial wage cuts. These workers were organized by the Confédération des Travailleurs Catholiques du Canada (CTCC), a union whose Catholic corporatist philosophy led it to favour arbitration over strikes. After two weeks, a Church official obtained agreement to submit the dispute to arbitration under the Quebec Trade Disputes Act. Work resumed pending a decision, which was not delivered until April 1926. The union leadership accepted the award,

148

LABOUR BEFOR E THE LAW

but some workers found its terms inadequate. Resistance spread rapidly and within two weeks 3,000 workers were on an unauthorized strike. The manufacturers tried to operate with non-union labour, picket-line violence ensued, and strikers were arrested. By this point, the manufacturers were determined to break the collectivity and refused to resume negotiations, notwithstanding the efforts of the mayor, the Quebec government, and Church officials to effect a compromise. Relief efforts were organized by the union, but after four months the strike ended in bitter defeat. The power of the employers, rooted in a legal system that protected private property and freedom of contract, allowed them to defy both the Church and elected officials.26 In short, the legal structure of industrial voluntarism, which enabled employers to access legal coercion to protect rights of property and contract but did not impose a legal duty to recognize and bargain with trade unions, was unfavourable to the growth of collective bargaining. Worse yet, in some situations the state also failed to protect workers against unlawful employer behaviour. The killing of two Finnish lumber union organizers, Viljo Rosvall and John Voutilainen, in 1929 provides the best example of this kind of state assistance to employers: selective law enforcement. Organizing bushworkers in Canada was a difficult task, given the remoteness of the camps, the fact that workers lived on their employers’ property, the seasonal nature of the work, the transience of the workforce, and the competitive character of the industry. The independent, socialist-led Lumber Workers’ Industrial Union (LWIU) enjoyed brief success in 1919 and 1920 in British Columbia, but was crushed when the operators blacklisted union activists during a period of high unemployment. Organizing efforts in Ontario were also fiercely resisted by employers and were further hampered by Ontario Provincial Police (OPP) harassment of OBU and IWW organizers.27 The next major organizing drive occurred in northern Ontario, principally under the auspices of the Lumber Workers’ Industrial Union of Canada, a Communist-led union established in 1924. In 1926 it joined with the IWW-affiliated LWIU and conducted a partially successful strike for higher pay and better camp conditions. By 1929 working conditions had deteriorated and another strike was called. It was doomed from the start. Factional fighting within the predominantly Finnish workforce and the importation of strikebreakers allowed some camps to keep logging. Although the OPP were under instructions not to guard the lumber companies’ property—that being a responsibility (and right) of the owners—they provided safe passage to the camps. The union complained that police stopped and searched

A PROSPEROUS I NTERRE G N U M

149

pickets but did nothing when subcontractors brandished weapons and threatened to shoot unionists who came on their property.28 In an effort to strengthen the strike, two union members, Rosvall and Voutilainen, were sent to organize lumber camps operated by an anti-union contractor. They never arrived at their destination and a union-organized search party failed to find them. The OPP was alerted but, according to the union, conducted a very cursory investigation and concluded that the men had gone through the ice while crossing a lake. The union obtained the assistance of a lawyer, J.L. Cohen, but his demand for a more thorough investigation was rejected by the Attorney General after consulting with the local Crown. By the time the bodies were found lying in a creek that spring the strike had been lost. A coroner’s inquest was held, but despite the fact that Rosvall had a fractured skull and broken arm, the jury returned a verdict of ‘accidental drowning’ after deliberating for only eight minutes. As targets of state repression, radicals and Communists had good reason to fear that the government would not vigorously pursue employers who attacked them. In 1927 Toronto police arrested seven members of the Communist Party of Canada (CPC) who were demonstrating outside the US consulate against the pending execution in Massachusetts of Italian-born anarchists Sacco and Vanzetti. The two women in the group were released at the police station but the five men were charged with disorderly conduct. Despite evidence that the demonstrators complied with the instructions issued by the police, Police Magistrate Browne convicted the accused and fined them each $50 plus costs.29 A full-fledged campaign to suppress the CPC began in the fall of 1928 when authorities in Toronto prohibited public meetings in languages other than English and threatened to have the licence revoked of any hall that permitted Communists to meet. When Communists attempted to hold outdoor meetings, the police arrested speakers and forced the crowds to disperse. An escalating series of confrontations followed over the summer of 1929, as police broke up demonstrations with considerable brutality and massive displays of force. Over the course of this struggle, numerous charges were laid and J.L. Cohen was retained by CLDL to defend the accused. Cohen met with some success in individual cases and, in particular, obtained a ruling that to secure a conviction under s. 98 of the Criminal Code the Crown must prove that the use of force or violence was advocated. Yet, the courts continued to endorse the authority of the police to break up demonstrations without having to show that a disturbance was actually caused and held that even unlawful police orders had to be obeyed.30

150

LABOUR BEFOR E THE LAW

Conclusion: Industrial Voluntarism, 1900–1929 The labour conflict that accompanied the Second Industrial Revolution led employers, workers, and the state to seek changes to both the coercive and conciliatory features of liberal voluntarism. Employers were primarily interested in finding new, more effective means of restricting trade union activity. Canadian judges, following the precedent of their English counterparts, responded favourably by surrounding employers’ freedom of contract and liberty to engage in trade with rights that prohibited workers from interfering with replacement workers and engaging in secondary actions aimed at suppliers or customers. Moreover, these prohibitions could be readily enforced through injunctions obtained by summary legal process. Damage actions took longer to complete and trade union funds could not be easily seized, but the threat could not be safely ignored by trade union officials. As well as strengthening the regime’s coercive infrastructure, the federal government also sought to reduce the incidence of strikes and lockouts in industries crucial to the national interest. Its commitment to economic liberalism limited the options. Compulsory arbitration was not acceptable, but compulsory conciliation prior to economic warfare was, although the government largely left enforcement of that obligation to the parties themselves. The application of the IDIA regime was extremely uneven. In those settings where strong unions coexisted with employers who accepted their presence, the IDIA helped institutionalize collective bargaining; where unions were weak or faced recalcitrant employers, it did not. Rather, coercion prevailed and unions did not survive, even if they were identified with the responsible wing of the labour movement. The situation was even worse for unions of the unskilled, whose members were often immigrants branded by employers and public authorities as prone to violence and, therefore, to be closely watched and heavily policed. The outbreak of World War I did not immediately trigger a sharp break from the ‘voluntarist’ regime, but as the war progressed and the labour market tightened, workers became increasingly disaffected. This manifested itself both in heightened trade union militancy and in the growth of political radicalism. From the state’s perspective, workers manifested an alarming willingness to act collectively in pursuit of political as well as economic objectives. Moreover, they did so in defiance of the authority of their employers, state officials, and, at times, officials of their own unions. Not surprisingly, many

A PROSPEROUS I NTERRE G N U M

151

government officials, employers, and some conservative trade union leaders felt threatened by this movement and thought that the existing regime was no longer adequate under wartime conditions. Yet there was no consensus on how the regime should be modified. Some favoured a strongly coercive response, including repression of political radicalism and suspension of the privilege to strike. Other, more moderate elements within government favoured a multifaceted response that included some coercion and the simultaneous promotion of labour peace through a political accord with conservative trade union leaders. The moderates dominated and a rapprochement was reached, premised on the support of conservative labour leaders for the war effort in exchange for federal support for the right of workers to form trade unions and bargain collectively. Yet, the departure from voluntarism was partial and uneven. The federal government was not willing to forcibly institutionalize trade union rights and a regime of compulsory collective bargaining. With few exceptions, it limited its efforts to declarations of principle and attempts at persuasion. Governments were less reticent about using coercion against radicals, although hardliners who wished to enforce repressive measures vigorously were held back by more moderate colleagues concerned about civil liberties and the opposition of responsible trade union leaders. Although strikes were prohibited just before the war’s end, the federal government was not prepared to enforce the ban. When the war ended, it was not clear whether the pre-war status quo would be restored. Certainly, many employers saw arrangements they had made with trade unions during the war as temporary compromises necessitated by anomalous conditions. However, they confronted a radicalized workforce demanding recognition of their wartime sacrifices and fulfilment of the government’s pledge that the war was fought for democracy. In the ensuing struggle over the shape of postwar labour policy, some within the federal government sought to build on the wartime rapprochement and promote the development of co-operative labour relations through collective bargaining between responsible employers and responsible unions, but they were foiled by employers who were unwilling to participate voluntarily in such arrangements and by their own refusal to entertain the use of coercion to make them do so. Coercion against radicalized workers, of course, was less restrained. The Winnipeg General Strike marked the high point of worker solidarity and state repression in the postwar period, and it was the tip of a much larger phenomenon whose contours varied depending on local conditions.

152

LABOUR BEFOR E THE LAW

The combination of employer resistance, state repression, workingclass fragmentation, adverse economic conditions, and the election of a federal government committed to a return to pre-war voluntarism sealed the fate of federal labour policy—the pre-war regime was restored. As well, the Snider decision in 1925 narrowed the federal government’s role in labour relations, thus ensuring that, barring a national emergency, future changes would have to be made provincially. When economic conditions improved in many parts of the country during the second half of the decade, the labour movement was unable to make much progress. Craft unions evinced little interest in organizing semi-skilled workers in the burgeoning resource and mass-production industries, and militant industrial unionism was met by employer resistance bolstered by judicially defined and stateenforced rights adequate to meet this challenge.

PART II

Towards a New Regime of Industrial Legality

7

Industrial Voluntarism in Distress: The Early Depression Years, 1929–1935 The Great Depression radically altered the terrain of class relations and, in the process, brought about labour unrest on a scale unseen since the end of World War I. Millions of Canadians were left destitute as a result of spectacularly high unemployment and inadequate government relief. Prime Minister King badly miscalculated both the extent of the problem and the temper of the times when, in the midst of a debate in the House over unemployment in 1930, he declared that he would not give the Tory provincial governments ‘a five-cent piece’ for unemployment relief. In the election called that summer he was defeated by the Conservatives, led by R.B. Bennett, who promised to solve the problem of unemployment. However, Bennett’s strategy, based on protective tariffs and increased unemployment relief, was no more successful than that of his predecessor.1 The Comintern accurately predicted in 1928 that capitalism was about to enter into a crisis and it hypothesized that workers, given the correct leadership, could become a revolutionary force. The strategy adopted for this ‘Third Period’ called for the establishment of separate unions and emphasized the need to organize the unorganized. In late December 1929, the CPC began organizing the National Unemployed Workers Association (NUWA) and took steps to establish the Workers’ Unity League (WUL), the umbrella organization to which the new radical industrial unions would affiliate.2 153

154

LABOUR BEFOR E THE LAW

The wave of organizing that followed, however, was not a topdown affair directed from Moscow, even though that was what many employers and state officials believed. Success depended on community-level mobilization, something that activists could not generate in the absence of widespread discontent. Unemployment and eroding conditions of employment radicalized workers and their communities, making them responsive to campaigns for jobs that paid a living wage or adequate relief. Moreover, legal rules that defined the limits of permissible struggle lost their normative purchase for workers facing severe deprivation. Working-class Canadians became more willing to engage in civil disobedience and to initiate picket-line violence. This outbreak of radicalism and militancy was met by unprecedented levels of state and employer violence that took many forms, often blurring the lines between public and private. The contours of coercion, however, varied over time and place, depending on a range of conditions, and as the crisis continued the range of responses to working-class militancy broadened and measures to accommodate some working-class grievances were adopted. Indeed, for the first time since World War I, the state’s commitment to industrial voluntarism wavered, particularly at the provincial level, resulting in experimentation with new forms of state intervention in the economy and in class relations. In particular, minimum-wage schemes, formerly developed on an exceptional basis to protect only the most vulnerable in the labour market (women and children), proliferated and were linked in various ways to collective bargaining. But there was little willingness on the part of governments to compel recalcitrant employers to participate in collective bargaining.3

The State and the Organized Unemployed Although it took state officials some time to appreciate the severity of the unemployment crisis, they were quick to blame the resulting unrest on Communist agitators and to adopt coercive strategies to contain them. With the co-operation of local officials, the federal government mounted a campaign of repression reminiscent of its response to the outbreak of militancy at the end of World War I. Although more relief money was made available, the major thrust of government policy towards the unemployed was containment, not amelioration. Unemployment began to rise sharply in the winter of 1929–30 and local officials became increasingly alarmed by the growing number of single unemployed men, especially if they organized under the

INDUSTRI AL VOLUNTARI SM I N DI ST R E S S

155

auspices of the NUWA. Vancouver was an early centre for this activity. In January 1930, the organized unemployed occupied relief offices and, following their eviction by the police, marched on City Hall. A month later, police used force to break up an unauthorized march of 300 unemployed, injuring many. Four organizers were charged with unlawful assembly. At trial, the jury was practically instructed to return guilty verdicts—which it did, but with a recommendation for mercy. The four were given suspended sentences and a stern warning to obey the law in the future.4 Ironically, just as the state was increasingly drawn to coercive responses to the perceived threat of Communist-led unrest, the King government finally passed part of its package of reforms to undo the 1919 amendments to the Criminal Code. Although the Senate once again blocked repeal of section 98, it agreed to reintroduce the stipulation that it was not criminal sedition to criticize the government or to advocate lawful change. As well, the maximum sentence for sedition was reduced from 20 years to two, restoring the pre-1919 penalty.5 Although the voters took their revenge on King for his insensitivity to the plight of the unemployed that July, the solutions offered by Bennett’s Conservatives did little to ameliorate their suffering. On the one hand, more money was made available for relief, but it was not nearly enough as unemployment continued to rise precipitously. On the other hand, deportation of the unemployed increased under section 40 of the Immigration Act, which allowed removal of persons other than citizens or persons with Canadian domicile (normally acquired after five years of legal residence in Canada) who, inter alia, became public charges. Because deportation was initiated locally, its incidence varied widely, but the overall pattern was clear. While only 444 persons were deported for becoming public charges in 1929, over 2,000 were deported for this reason in 1930 and between 1930 and 1935, 17,229 unemployed were ‘shovelled out’.6 As the crisis worsened and the level of organized action by the unemployed increased, government officials responded with more repressive measures. In Windsor, police arrested 14 demonstrators at a plant-gate rally in support of public unemployment insurance. In Vancouver, Allan Campbell, a leading NUWA organizer, was convicted of inciting to riot and sedition. As well, Ronald Steward was convicted of inciting troops to mutiny and sentenced to two years’ imprisonment for putting up posters calling on soldiers and sailors to ‘organize with the rest of your class’. Both were deported at the end of their sentences. In Toronto, police found creative ways to interfere with efforts to organize the unemployed. For instance, job offers were

156

LABOUR BEFOR E THE LAW

obtained for activists. Those who took the jobs left the ranks of the unemployed while those who refused were prosecuted for vagrancy. In many communities activists were at risk of being cut off relief.7 Deportations of radicals were also stepped up. The Immigration Act provided the legal authority to accomplish this. Foreign-born activists were liable to be deported if, prior to their entry into Canada, they had certain medical conditions, engaged in certain activities, or had criminal records, regardless of how long they had been in the country. As well, immigrants who concealed or lied about their past to obtain entry could be deported even after they had become citizens. The law also provided that immigrants could be deported for events that occurred after their arrival in Canada. For example, an immigrant convicted of a criminal offence was liable to deportation. Thus, any immigrant who lacked citizenship or domicile and who was convicted of even the most minor criminal offence might be whisked off to the government detention centre in Halifax and deported after a summary hearing. As well, section 41 of the Immigration Act permitted deportation for political offences. The incidence of politically motivated deportations is impossible to calculate because the government rarely relied on section 41, preferring instead to deport on other grounds; but regardless of the precise number, there were enough so that the threat could not be safely ignored by foreign-born activists.8 The government’s fear of Communist-inspired disorder and its belief that an iron-fisted response was required led it to include a provision in the new relief law, passed in August 1931, allowing cabinet to make ‘all such orders and regulations as may be deemed necessary or desirable for . . . maintaining peace, order and good government throughout Canada’. In the House of Commons debates, Mackenzie King, now sitting in opposition, warned that if the bill was passed it ‘will be the beginning of the end of . . . responsible government in Canada.’ J.S. Woodsworth noted that by grouping relief and the maintenance of order in the same bill, the government ‘suggests that among the needy people of this country are those who will have to be held down by the military.’ In reply, R.J. Manion, the Minister of Railways and Canals, asserted that the measure was necessary for ‘keeping the bolshevists in order by force’.9 Steps were already being taken to accomplish this result. The RCMP and various provincial and local police forces maintained extensive surveillance over radical organizations. As well, Communists were being prosecuted for their political activities. For example, five men who spoke at a meeting called by the Unemployed Council of

INDUSTRI AL VOLUNTARI SM I N DI ST R E S S

157

Montreal in January 1931 were arrested and charged with sedition. Police testified that the accused called for people to fight the police and government. The five were convicted by a jury and each was sentenced to one year of hard labour. Two more people, Bella Gordon and Louis J. Engdahl, were arrested and charged with sedition for comments they made at a meeting called to protest the first arrests. In this case, the accused were acquitted because they had taken the precaution of hiring a stenographer to record their words and were able to present compelling evidence contradicting the police version of their speeches. In Winnipeg, Calgary, and Sudbury demonstrations of the unemployed in the first half of 1931 became violent when the police attempted to break them up.10 That summer, the Ontario Attorney General, at the urging of Hugh Guthrie, the federal Minister of Justice, initiated the arrest of eight leaders of the CPC, including Tim Buck, on charges of conspiracy and being members and officers of an unlawful association. Despite all the evidence that had been gathered, the prosecution could not prove that the accused had personally committed any overt act of violence in Canada or had called for the use of force or violence to overthrow constituted authority. Instead, the prosecution sought to prove guilt by association. The trial judge, Justice W.H. Wright, was a man who had already exhibited intolerance for dissent and his rulings favoured the prosecution. The accused were convicted on all counts. Wright sentenced seven of the CPC leaders to five years’ imprisonment and the other to two years. He also announced that he would recommend deportation of all the foreign-born accused. On appeal, the convictions for seditious conspiracy were overturned, but the section 98 convictions were upheld and the sentences were not reduced.11 The finding by the court that the CPC was an illegal organization meant that every member was potentially liable to be prosecuted under section 98. Although the number of subsequent section 98 prosecutions was small,12 the conviction further legitimized the crackdown, at least in the eyes of politicians, law enforcement officials, and judges. The number of radicals prosecuted for other criminal offences also increased. The CLDL knew of 720 arrests and 155 convictions in 1931, and 839 arrests and over 200 convictions with sentences totalling 115 years’ imprisonment in 1932.13 The finding of the court also facilitated the use of section 41 of the Immigration Act, which allowed deportation of persons with Canadian domicile, provided they were not Canadian citizens. The informality of deportation procedures made deportation an attractive alternative to prosecutions under section 98 because those accused of Criminal Code offences

158

LABOUR BEFOR E THE LAW

were entitled to trial by jury. In 1932 the RCMP, motivated by internal security concerns, resumed provincial policing duties in Alberta, Manitoba, New Brunswick, Nova Scotia, and Prince Edward Island.14 Despite the crackdown, unemployed workers stepped up their protests the following year. Fifteen thousand people in Vancouver and another 2,000 in Victoria participated in peaceful hunger parades, but in numerous other cities May Day rallies and protests by unemployed workers were violently suppressed. In Ontario, the deputy attorney general urgently warned local Crown attorneys to prepare for disturbances, and police in Sudbury, Timmins, and Hamilton forcibly dispersed people attempting to march after they had been denied permits by local authorities.15 Some officials, however, were concerned about civil rights and legality. In response to a memo prepared by the Ontario Attorney General’s department advising local authorities to refuse permits for parades and meetings, William Price wrote to the then acting Ontario Attorney General, Charles McCrea, firmly opposing this use of the police power. ‘If they have power to exclude one group they have to exclude another. . . . one must be careful not to repress the rights of the general public as citizens.’ In a similar vein, although the courts were generally sympathetic to the state’s concerns, some judges insisted that formalities be respected, even if that resulted in some accused avoiding punishment.16 The question of what to do with single unemployed men still loomed large. Some provinces established temporary relief camps, but they were not sufficient to absorb all the men. Moreover, the camps were becoming centres of unrest. Pressure was growing on the federal government to take a more active role in solving the problem. In mid-July, Bennett issued orders to the RCMP to remove transients from the trains, but this only exacerbated the problem. That fall, the federal government issued an Order-in-Council, PC 2248, establishing work camps under the army’s control. The Department of National Defence (DND) relief camps performed a number of functions, but according to the camps’ major sponsor, General Andrew McNaughton, a primary role was to remove ‘the active elements on which the “red” agitators could play’. For that reason, most camps were located far from major urban areas.17 By the winter of 1932–3, approximately 46,000 men were residing in the DND relief camps. In total, 170,248 men spent time in them before they were abolished in 1936. Although technically voluntary, for many single men the only alternatives were starvation or jail. Camp residents were expected to work 40 hours a week in return for

INDUSTRI AL VOLUNTARI SM I N DI ST R E S S

159

food, shelter, clothing, medical care, and a daily allowance of 20 cents. Discontent was rampant, but the authorities did not address its causes; rather, they sought to suppress its manifestations by expelling and blacklisting troublemakers and by instructing camp administrators not to countenance ‘anything bearing the appearance of combination to obtain redress of alleged grievances’.18 Repression, however, did not resolve the underlying grievances, and by the spring of 1933 strikes and other forms of collective protest were occurring in the camps across the country. In one instance, an RCMP officer was killed during a riot that started when police attempted forcibly to eject unemployed workers who refused to be transferred to another camp. Many of these protests were spontaneous, but by 1933 the WUL was actively organizing the Relief Camp Workers’ Union (RCWU). In total, 359 strikes, riots, demonstrations, and disturbances in the camps were sufficiently serious to be reported to Ottawa. Authorities responded by stepping up the repression. As early as the spring of 1933, plans were made to establish special ‘Camps of Discipline’. A draft Order-in-Council was prepared under the authority of the 1933 Relief Act and the government acquired a site for the camp, but the order was never issued.19 A restraining influence on the use of coercion was the widespread sympathy for the plight of the unemployed, which manifested itself politically in the establishment and popularity of the Co-operative Commonwealth Federation (CCF) in July 1933 and the defeat of Conservative provincial governments in Nova Scotia, Ontario, Saskatchewan, and British Columbia in 1933–4. Indeed, in Saskatchewan and British Columbia the CCF formed the official opposition. This shift also created practical difficulties for the federal government in carrying out its coercive plans because it required provincial and local co-operation to have the laws enforced in the way it desired.20 The relief camp system in British Columbia was the largest and its workers the best organized. It is not surprising, therefore, that the crisis that ultimately brought down the system started there. The RCWU began campaigning in December 1934 for a minimum wage, coverage by workers’ compensation, an end to blacklisting, and recognition of camp committees. Strikes began in a number of the camps, and over the next two weeks about 1,000 men descended on Vancouver where they were denied relief. Negotiations with the federal government failed, but an agreement was reached with the provincial government whereby the men promised to reapply to the camps in exchange for interim relief and a promise to lobby Prime Minister Bennett to appoint an independent commission.21

160

LABOUR BEFOR E THE LAW

The underlying grievances were left unresolved and in March 1935 the RCWU issued a new set of demands, including work for wages, entitlement to workers’ compensation, civilian control of the camps, recognition of democratic camp committees, and the right to vote. As well, the RCWU demanded non-contributory unemployment insurance and repeal of section 98 of the Criminal Code, sections 40 and 41 of the Immigration Act, and other laws perceived to be antiworking class. A mass strike and walkout in support of these demands was planned for 4 April. Meanwhile, a war of words was being waged between the federal and BC governments over the appointment of a commission of inquiry and the province’s refusal to support the camp regime. On 1 April the federal government appointed a commission, but its mandate was narrowly defined so as to put the RCWU demands beyond its purview. Nearly 2,000 relief camp workers reached Vancouver in the weeks that followed. By putting pressure on local authorities, the strikers hoped to force them to press the federal government to make concessions. Unlike employed workers, however, they could not disrupt production by withdrawing their labour. They needed other tactics. On 23 April, strikers occupied the Vancouver Hudson’s Bay store and battled with police who tried to evict them, resulting in injuries, arrests, and property damage. Demonstrations later that day were dispersed and Mayor Gerald McGeer read the Riot Act. The following day he announced a ban on all public meetings, parades, and demonstrations, but no effort was made to enforce this decree. Mass meetings attracted 15,000–20,000 sympathizers, although a one-hour sympathy strike failed to materialize. With their demands still unmet, on 18 May a group of strikers occupied the Vancouver City Museum, supported by a large demonstration of sympathizers. Negotiations produced the first concession: the province agreed to provide two days of relief in exchange for a peaceful evacuation. Despite this small victory, it was becoming obvious to the organizers that the strike was losing momentum and that something else needed to be done. The idea of a mass trek to Ottawa was raised in the strike committee and adopted by a mass meeting of the strikers at the end of the month. The trek began on 3 June 1935, when some 1,200 workers boarded trains in Vancouver. No attempt was made to prevent their departure by federal, provincial, municipal, or railway officials. Local officials were only too happy to see the problem go away, while federal authorities assumed that the trek would dissipate after it began. To their surprise, however, the trekkers were disciplined and organized substantial local support at stops along the way. Instead of weakening,

INDUSTRI AL VOLUNTARI SM I N DI ST R E S S

161

Organized youth in Vancouver were among the groups protesting harsh conditions and the oppressive labour regime during the Depression. (Vancouver Public Library, No. 8796.)

the trek appeared to be picking up steam. In Calgary trekkers laid siege to the local relief office when municipal officials denied them assistance. By this time, Bennett and his government were convinced that the trek had to be terminated before it reached Ottawa. On 11 June the government decided, without consulting local officials, that the trek would be stopped in Regina.22 Because the Liberal provincial government of Premier Jimmy Gardiner strenuously opposed its plan, the federal government needed to gain control over RCMP forces in the province. To do so, it obtained written requests from the railways for RCMP assistance in preventing trespass to railway property. Under the policing contract, the federal government could assume command of the local RCMP to assist in matters like this that fell under federal jurisdiction. Premier Gardiner’s protest against this usurpation of provincial authority was rejected, and on 14 June the trekkers were confronted with the announcement that they would not be permitted to proceed any further by rail. In a move reminiscent of the Borden government’s early response to the 1919 Winnipeg General Strike, the federal government dispatched the Minister of Railways, R.J. Manion, and the Minister of Agriculture, Robert Weir, to resolve the crisis. Following their meetings in Regina, Manion and Weir arranged for a delegation of trekkers to present their grievances to the federal cabinet in Ottawa. Arthur Evans, the leader of the British Columbia RCWU and an active Communist, headed the delegation. Its meeting with cabinet went disastrously. Bennett branded Evans a criminal, raising his previous convictions for trade union activities, and questioned each delegate about his place of birth (except for Evans, all

162

LABOUR BEFOR E THE LAW

were born outside Canada). Evans accused the Prime Minister of being a liar and of using despicable tactics. Nothing was resolved. As the trekkers feared, the federal government used the time to strengthen its forces in Regina. It ordered the RCMP not to allow the trekkers to leave by the highways or to disband under their own organization. These orders clearly infringed provincial jurisdiction, but the police still arrested six people who attempted to leave Regina by truck on the evening of 27 June. When the legality of the orders was raised, RCMP Commissioner J.H. MacBrien informed the local RCMP commander that an Order-in-Council had been promulgated pursuant to the broad powers conferred on cabinet by the Relief Act. F.B. Bagshaw and E.C. Leslie, two Regina lawyers retained as agents by the federal government, charged five of the six with vagrancy. Upon receiving further instructions from Ottawa, the five were charged with being members of an unlawful association under section 98.23 In fact, no such Order-in-Council had been issued, but this did not prevent the local RCMP from publicly issuing a statement that, pursuant to this phantom Order-in-Council, it was an offence to assist the trekkers in any way. Moreover, the rumoured existence of such an order helped obfuscate the federal government’s unconstitutional assumption of provincial policing powers. Trek leaders recognized that they could not continue and anxiously sought a face-saving way to end the trek peacefully. The federal government already had refused to allow them to disband under their own direction, so on 1 July they proposed to Premier Gardiner that he permit them to do so under provincial jurisdiction. The Premier promised to advise the trekkers of his government’s decision late that evening or the following day. Earlier that morning, however, Bagshaw and Leslie met with John Leopold, the infamous RCMP informer, who had arrived from Ottawa. Based on evidence he provided, Bagshaw and Leslie concluded that the RCWU was an unlawful association under section 98 and information and complaints were sworn out against seven leaders, including Evans. Warrants for their arrest were issued and that evening the police executed an ill-conceived plan to arrest the strike leaders before they spoke at a rally called to inform the trekkers of recent developments.24 Plainclothes police were stationed in the crowd and troops of RCMP and city police surrounded the meeting ground, concealed in furniture vans. At an agreed signal the police charged the crowd and a riot ensued. The police used guns, tear gas, and batons while the trekkers defended themselves with rocks and makeshift clubs. In the end, one city detective was killed and scores of trekkers and police were injured. The trekkers retreated to the grounds where

INDUSTRI AL VOLUNTARI SM I N DI ST R E S S

163

they had been staying and were surrounded by the RCMP. The provincial government, which had not been informed in advance of the planned police action, protested vigorously and, eventually, obtained federal approval to disband the trek under provincial government auspices, just as the trekkers had proposed before the riot. More than 100 people were arrested on charges arising out of the riot. Sixty were released shortly after their arrest due to insufficient evidence and charges of rioting, assault, and obstructing the police were laid against the others. Ultimately, 33 of those charged were tried, but only eight were convicted. They were sentenced to jail terms ranging from seven to 15 months. Only three of the leaders for whom warrants had been issued were arrested, but the provincial Attorney General subsequently withdrew the charges for insufficient evidence.25 Although Bennett stopped the trek, he failed to convince the public that his government’s actions were justified. His government’s apparent willingness to violate citizens’ rights to freedom of speech and assembly, and to exceed its constitutional powers, prevented it from wrapping itself in whatever shreds of legitimacy it might have salvaged by cloaking itself in the mantle of defender of the rule of law. Moreover, the government could not hide behind the claim that it merely provided a legal infrastructure that others invoked. In the October elections, Bennett was roundly defeated by the Liberals, under the leadership of Mackenzie King, and within a year the King government disbanded the relief camps and repealed section 98.26

The State and the Organized Employed Despite the devastating effects of the Depression, most workers did not lose their jobs. They did, however, lose faith in the ability and commitment of employers to look after their interests. Employed workers also demonstrated a surprising willingness to resist employer demands for concessions and to fight for a restoration of wages at the first sign of a recovery. Although the number of strikes in 1930 (74) dipped to a twentieth-century low, strike activity increased steadily from 1931 (91) to 1934 (222) and then declined in 1935 (154). Trade union membership dropped absolutely from 1930 to 1935 (322,000 to 281,000), but actually increased as a percentage of non-agricultural paid workers (from 13.1 to 14.5 per cent).27 The most dynamic new unions in this period were those affiliated with the WUL, at a time when Comintern policy viewed social democrats and traditional trade unions as obstacles to working-class

164

LABOUR BEFOR E THE LAW

radicalism. The significance of WUL unionism in this period is only partially captured by its numerical growth, from an estimated 7,000 in 1931 to 30,000 in 1934. More important were its orientation and tactics. While most TLC unions adopted a defensive posture and the TLC as a body rejected industrial unionism, the WUL sought to organize new industrial unions and include members of ethnic groups traditionally excluded by mainstream unions.28 Not surprisingly, these efforts were fiercely opposed by employers, who wished to maintain open shops and who found the Communist rhetoric and connection especially alarming. The availability of replacement workers in a high unemployment economy further stiffened employer resistance. In response, WUL unions, already ideologically committed to class struggle, often adopted militant tactics. As a result, not only did WUL unions lead the majority of strikes in the years 1932–4, but they also manifested a willingness to break the law if necessary to make their strikes effective.29 In confrontations between employers and militant unions, the state was hardly neutral, but it also was not monolithic in its response. During the first years of the Depression there was an unusually high degree of consensus among state officials, especially when it came to suppressing the perceived Communist menace. Similarly, when employers invoked the coercive apparatus of the state in their disputes with ‘red’ unions, officials with law enforcement responsibilities were generally predisposed to respond favourably. The use of illegal tactics by strikers gave these state officials a perfect justification for their actions. Between 1930 and 1935 there were over 100 strikes involving police interventions and/or criminal prosecutions. These occurred primarily where WUL unions were most active: mining, lumber, and sawmill operations and clothing manufacturing. At the same time that injunctions were being issued and workers arrested, federal and provincial labour officials continued to become involved in conciliation and mediation efforts, seeking to bring disputes to an end as quickly as possible by encouraging the parties to compromise. Although there are no studies of conciliation during this period, it would appear that officials, for both prudential and ideological reasons, encouraged trade unionists to abandon demands for recognition and accept shop committee representation instead, while employers were pressed to agree not to discriminate against union members. The success of negotiations, however, was only partially determined by the mediators’ persuasiveness. A far more important influence was the balance of power, which was an artifact of economic conditions and the legally constructed and state-enforced

INDUSTRI AL VOLUNTARI SM I N DI ST R E S S

165

rules. Conciliation ultimately occurred on a terrain shaped by the coercive infrastructure. Labour officials also treated ‘responsible’ and ‘irresponsible’ unions differently. In British Columbia, for example, the Department of Labour report for 1932 noted that the majority of strikes did not involve the ‘old and established’ trade unions. Employers belatedly realized that these responsible unions ‘have been the main bulwark of safety during the last few years’ and the author suggested that ‘[g]reater co-operation between Associations of Employers and Union officials is the only avenue by which the sinister influence now at work can be held in check and finally eliminated.’ Where officials intervened in strikes involving radical unions, they often sought to resolve them in a manner that excluded the union entirely.30 The reported case law is an unrepresentative tip of a much larger body of prosecutions and civil actions. These decisions made no significant changes to the legal regime and had little impact on the course of industrial conflict. Disagreement persisted among the judiciary over the freedom to picket. Ontario Superior Court judges continued to take a more liberal view of picketing than their British Columbia counterparts. For example, a judge refused to enjoin picketing by the International Alliance of Theatrical/Stage Employees (IATSE) members in front of a Hamilton theatre on the ground that injunctions could not be granted to suppress activities that might be crimes. Later, criminal charges arising out of that picketing were dismissed on appeal by Ontario Chief Justice H.E. Rose because, in his view, mere picketing with a view to compel an employer to agree to a union’s demands was not in itself criminal in the absence of other wrongful behaviour such as disorderly conduct, nuisance, or libel. In British Columbia, however, IATSE members engaged in identical conduct were convicted of watching and besetting. According to the majority of the BC Court of Appeal, the mere fact that picketers sought to compel the employer to agree to the union’s demands made its behaviour wrongful, even though it was perfectly peaceful.31 The dispute over the scope of criminal watching and besetting was partially resolved by Parliament in 1934 when it passed a Criminal Code reform law that, inter alia, restored the ‘peaceful picketing merely for the purpose of communicating information’ exception omitted when the Code was first adopted in 1892. Federal Attorney General Hugh Guthrie explained that the exception had never been expressly repealed by an Act of Parliament, but rather had been accidentally dropped. The amendment passed without discussion. This silence was remarkable given that many judges used the omission to

166

LABOUR BEFOR E THE LAW

justify their narrow interpretation of workers’ freedom to picket and that previous governments consistently rejected labour’s demand to restore the exemption.32 Perhaps, the Bennett government was beginning to recognize the political cost of its iron-heel policies. The late and ill-conceived attempt to introduce the so-called Bennett New Deal in January 1935 reflected Bennett’s realization that he needed to be seen as a positive reformer if he was to survive politically. In the end, however, it was too little, too late. Unlike President Franklin D. Roosevelt’s National Industrial Recovery Act (NIRA), Bennett’s labour bills did not protect trade union activity or institutionalize, even weakly, collective bargaining. Indeed, they did not even make a rhetorical gesture in this direction.33 The American NIRA was premised on the view that excess competition and underconsumption were key causes of the economic crisis and that they could be countered through industrial self-regulation. This was to be achieved by industry-created, state-approved codes of fair competition, free from the constraints of anti-combines law. Fair competition, however, could not be accomplished without controlling labour costs. Roosevelt rejected state-imposed, across-the-board minimum standards and, in the voluntaristic spirit of the codes, gave workers a voice in constructing labour standards. But to make this effective and to satisfy the demands of supporters of organized labour, freedom of association needed to be protected. This was accomplished in section 7, which mandated the inclusion of certain labour rights in these codes. Section 7(a) promised workers the right to organize and bargain collectively through representatives of their own choosing, free from employer interference. As well, ‘yellowdog’ contracts were banned. No worker could be compelled, as a condition of employment, to join a company union or to refrain from joining or organizing a labour organization of his or her choice. Sections 7(b) and 7(c) made provision for minimum standards. These were to be created in the first instance through mutual agreement between employers and organized workers, but if no agreement could be reached the President was authorized to prescribe a code after an investigation. Thus, workers were given a right, not just a liberty, to organize and bargain collectively and a right to participate collectively in setting legally binding minimum standards.34 Bennett offered three bills, the Minimum Wages Act, the Weekly Rest in Industrial Undertakings Act, and the Limitations of Hours of Work Act, drafted to give effect to conventions of the International Labour Organization that Canada ratified immediately prior to the

INDUSTRI AL VOLUNTARI SM I N DI ST R E S S

167

legislation being introduced. While the legislation recognized depressed worker purchasing power as a cause of the Depression, it did not strengthen workers’ collective organization as part of the solution. None of these statutes protected the right to organize or bargain collectively and only one, the Minimum Wages Act, provided for trade union participation in the establishment and administration of the minimum standards regime. That Act, however, did not establish a mechanism to implement minimum wages; it merely empowered the cabinet to create one by regulation. Even these modest attempts at a New Deal labour policy faced a major obstacle beyond Bennett’s control: the constitutional division of powers. There was little likelihood that the courts would uphold these statutes since federal jurisdiction depended on a finding that the power to implement international agreements allowed the federal government to legislate on matters within provincial jurisdiction. Two years later, the Judicial Committee of the Privy Council held these statutes invalid.35 Before the end of the parliamentary session, the Royal Commission on Price Spreads reported in April 1935. It recommended both the strengthening of minimum standards and the promotion of collective bargaining. Indeed, it asserted that government ‘has a direct responsibility to encourage’ trade unions, ‘for the protection not only of labour but also of the fair employer’. The Commission recognized that trade unions were crucial to the effective enforcement of minimum standards and predicted that if employers and the state were more accepting of trade unions, then trade unions would become more inclined to engage in ‘constructive co-operation in the improvement of social conditions’.36 The Commission’s specific recommendations, however, let the Bennett government off the hook. While the Commission proposed an amendment to the IDIA to allow the appointment of conciliation boards to investigate complaints concerning improper intimidation or discriminatory action by employers or workers and an amendment to the Criminal Code making it an offence to pay wages below the legal minimum or to engage in other fraudulent practices, it did not recommend that interference with the right to organize be treated as a criminal offence. Instead, it recommended changes to provincial laws that would support trade union rights and collective bargaining and called for measures to achieve greater national uniformity in labour laws. Needless to say, the Bennett government did not go beyond what was recommended; it passed amendments to the IDIA and the Criminal Code along the lines suggested by the Commission.

168

LABOUR BEFOR E THE LAW

The IDIA amendment, however, was subsequently defeated in the Senate, both because of technical objections and because the TLC saw little in the IDIA amendment worth supporting.37 In sum, a ‘new deal’ for labour failed to materialize federally, but provincial governments began to experiment with legislation that addressed the causes and consequences of the Depression. Many of these schemes were sector-specific. To appreciate the range of provincial policies and the factors that influenced them, we focus on three that attracted significant attention in a number of jurisdictions: mining, logging, and highly competitive industries. Mining As in the past, conflict in the mining industry was particularly sharp, often involving entire communities Depressed conditions led to short hours, declining wage rates, and generally harsh conditions for the miners. Worker resistance to these trends was often led by ‘red’ unions, most notably the Mine Workers’ Union of Canada and the Amalgamated Mine Workers. Their presence heightened employer resistance and state willingness to use coercion. This pattern can clearly be discerned in the events at Estevan, Saskatchewan. Short hours, wage cuts, health and safety violations in the mines, poor living conditions in company housing, and overpriced company stores led miners to organize themselves into a local of the MWUC in 1931. Local coal operators steadfastly refused to meet with the union, and after brief unsuccessful state mediation efforts the workers struck on 7 September. Local RCMP initially resisted the employers’ demands for mass police protection so that they could operate with replacements, but more senior officers, concerned about the MWUC’s Communist affiliation and the participation of a large number of foreigners in the strike, dispatched reinforcements. At the same time, conciliation efforts intensified. The federal Department of Labour sent its chief conciliation officer to the scene and District Court Judge Edmund Wylie was jointly appointed by the federal and provincial governments to head a Royal Commission to investigate the dispute.38 As the strike wore on, the RCMP and local officials increasingly viewed the MWUC as a threat. In an effort to stop a large parade and rally, the Estevan town council passed a resolution prohibiting the rental of the town hall to the union, banning the parade, and authorizing the local police and the RCMP to prevent it from taking place. The miners, knowing that a parade had been banned, organized a motorcade from Bienfait to Estevan that attracted 300–400 miners and their

INDUSTRI AL VOLUNTARI SM I N DI ST R E S S

169

families. The motorcade was blocked by a contingent of 47 heavily armed RCMP officers when it reached the outskirts of Estevan. A skirmish ensued when the police attempted to arrest one of the leaders and police opened fire, killing three miners and wounding another eight. Four bystanders and one RCMP officer also suffered gunshot wounds. RCMP reinforcements were rushed in, machine guns were placed at strategic locations, and the Estevan militia was called up. Eighteen local miners were arrested and escorted under heavy police guard to Regina, where they were arraigned on charges of rioting and unlawful assembly. The MWUC arranged for legal representation and all were shortly released on bail. At the same time, the RCMP searched for MWUC activists Annie Buller, Martin Fortkin, Sam Scarlett, and James Sloan, who had come to assist in the strike. Eventually, all either surrendered or were captured. Negotiations resumed in an effort to reach a temporary agreement, but without formal MWUC involvement. Local leaders reluctantly recommended an interim settlement that left the issue of union recognition unresolved. The deal was approved, but only after an MWUC organizer who urged miners to reject the temporary accord was arrested on a charge of infringing the IDIA and additional RCMP officers were dispatched to the ratification meeting to prevent ‘outside agitators’ from participating. The Wylie Commission subsequently reported. Many of its recommendations were favourable to the miners, but its view of the MWUC reflected that of the federal government. In language remarkably similar to the 1903 Royal Commission in British Columbia, the Commission stated: One must come to the conclusion that the Mine Workers’ Union of Canada, through its affiliation with the Workers’ Unity League, has ceased to become a labour union in the ordinary sense, but has been converted into a revolutionary industrial union, pledged to a program and policy of revolutionary struggle for the complete overthrow of capitalism and for the establishment of a revolutionary workers’ government. Employers could not possibly be expected to recognize such an organization and the miners were advised to keep away from outside agitators, who were more interested in pursuing their own agenda than in securing satisfactory solutions to the problems the miners faced.39 By the time the Estevan trials began in March 1932, the men were back at work and the MWUC had been defeated. Charges against two leaders were dismissed for lack of evidence, while two others were convicted of rioting and imprisoned. The trial of Annie Buller was the

170

LABOUR BEFOR E THE LAW

most dramatic. She was convicted of inciting to riot for a speech she gave in Bienfait before the parade left for Estevan. When speaking to sentence, she was unrepentant: ‘I aim to educate my class. . . . I did not incite . . . and my activities were all directed to the welfare of the men and women that toil. In some small way I have made an effort to assist the exploited workers and farmers of this country.’ Buller was sentenced to one year at hard labour and fined $500. The conviction was quashed on appeal, but Buller was convicted again at a retrial in March 1933. She served her sentence in solitary confinement at the prison in North Battleford, Saskatchewan. The 18 local miners were tried in four groups. Charges against four were dropped, two were acquitted, three received suspended sentences, and the remaining nine were sentenced to punishments ranging from a $150 fine to two years less a day at hard labour.40 The MWUC’s effort to organize coal miners in Princeton, BC, in November 1932 was also defeated with the aid of state coercion. When a fight broke out between striking and non-striking workers, additional provincial police were dispatched with orders to arrest suspected agitators. Some striking miners were subsequently arrested and fined, but Arthur Evans, then the leading MWUC organizer, was the principal target. He was arrested and held without bail on a charge of sedition under section 98(8) of the Criminal Code. Even though the strike collapsed, the prosecution of Evans continued and he was convicted and sentenced to a year’s imprisonment on the basis of a speech he gave in Vancouver prior to his departure for Princeton. The verdict was upheld on appeal, where the court broadly defined the prohibited conduct: ‘Even indirect language carefully selected in the hope of avoiding a breach of the Act may on their fair interpretation be regarded as an advocacy of force.’ A booklet on the strike, published after the conviction, denounced ‘the slimy hand of capitalist justice’ and claimed that ‘[w]hen capitalism tries a case, it is a case of whose ox is being gored and the snivelling magistrate lives up to his role of defender of his class.’41 The MWUC’s greatest strength lay in Alberta, where, despite state coercion, it managed to survive in some locations. It lost its first confrontation in 1930 in Mercoal when about 100 APP reinforcements were brought in after picketers tried to stop a group of scabs from crossing the line. Five strikers, including MWUC leader James Sloan, were arrested and subsequently convicted on charges of unlawful assembly. Sloan was also convicted for inciting to riot and bound to keep the peace for two years. Striking miners were also evicted from their company-owned homes.

INDUSTRI AL VOLUNTARI SM I N DI ST R E S S

171

The union fared better during a 1932 strike in the Crowsnest Pass mines. Again, it was the attempt to use scab labour that triggered a confrontation with 75 RCMP officers on duty to protect the replacements. Unlike in Estevan, however, the Mounties exercised greater discipline and shots were never fired. After two days of fighting, the employer abandoned its efforts to open with replacement workers. More than a dozen strikers, including two women and Harvey Murphy, a WUL organizer who had come from Toronto to lead its western efforts, were also arrested and charged with unlawful assembly. Violent confrontations became a regular occurrence for the remainder of the strike. John Stokaluk, a leading MWUC organizer, narrowly survived an assassination attempt. During the summer, 15 people, including four women, were arrested in connection with an assault on miners who crossed the picket lines. The United Farmers of Alberta (UFA) government responded by prohibiting parades, and the following day 100 demonstrators were arrested for defying the law. When the MWUC threatened to escalate the conflict further by resorting to a 100 per cent strike, the local RCMP inspector, fearing more violence, negotiated a truce; the MWUC removed the picket line in exchange for Premier John E. Brownlee’s agreement to mediate the dispute. His intervention in late August produced a compromise settlement of the seven-month strike. The miners were allowed to join the union of their choice without discrimination and miners not rehired by the coal operators would be provided relief by the government.42 The survival of the MWUC in Alberta resulted from both stronger local organization and the unwillingness of Brownlee’s UFA government to provide the coercive force necessary to crush the striking miners. Indeed, the success of the strikers in persuading the Premier to intervene led one coal operator to complain to Prime Minister Bennett that ‘practically at Mr. Brownlee’s dictation, I was obliged to sign an agreement with this organization and the leaders who had continuously flouted all law and order and preached open sedition and militant revolution.’43 The forays of the MWUC into hardrock mining were also fiercely resisted by employers, who successfully mobilized state coercion to defeat this ‘red menace’. For example, a strike at the Anyox mine in British Columbia in February 1933 produced a battle with provincial police that resulted in serious injuries. After police reinforcements arrived, several strikers were arrested and the company expelled about 400 strikers from the camp. They were taken to Prince Rupert, where they again battled with police to prevent replacement workers

172

LABOUR BEFOR E THE LAW

from boarding a ship bound for Anyox. Police gained the upper hand and the strike was broken.44 The two largest hardrock-mining strikes of this era, one in Flin Flon, Manitoba, and the other in Noranda, Quebec, both began early in June 1934. In Flin Flon, additional RCMP officers were deployed when miners struck the Hudson Bay Mining and Smelting Co. on 6 June. After a violent confrontation between striking and non-striking miners, 65 people were arrested and charged with a variety of offences, ranging from intimidation to obstruction of justice. Premier John Bracken travelled to Flin Flon on 7 July and, after meeting with various groups, announced his support for a return to work on the conditions offered by the company. He also promised protection for workers who crossed the line. Unable to obtain any government support, the MWUC accepted defeat. That October, strike leaders were convicted and sentenced to jail terms ranging from one to two years, while convicted rank-and-file unionists were given shorter jail sentences. As well, the company, virtually the only employer in a oneindustry town, blacklisted trade union activists. The strike at Noranda began on 12 June and was also accompanied by an immediate increase in the police presence. Open-air meetings were banned and workers and their supporters who defied it were arrested on a variety of charges. Within a short time the strike was broken. Nevertheless, the prosecutions proceeded. Those charged with lesser offences were tried summarily, while those facing more serious charges of rioting and sedition were remanded to the December 1934 assizes. Fifteen men, mostly foreign-born, were sentenced to two years’ imprisonment and ordered deported, while others were sentenced to lesser terms. A vindictive Court of Appeal not only denied the appeal, but refused to count the time spent in prison awaiting the appeal towards the completion of the sentences.45 Coal miners in eastern Canada were not as responsive to the WUL’s organizing efforts. Nevertheless, by 1932 there was substantial dissatisfaction with the UMWA and an autonomous breakaway, the Amalgamated Mine Workers, formed. It failed to displace the UMWA or to mobilize workers for large-scale strikes, so there was no need for massive displays of state force. Instead, the newly elected Liberal government aided the UMWA to keep the AMW out. For example, during a joint strike of the UMWA and AMW against the Acadia mines in the spring of 1934, the minister of the recently established Nova Scotia Department of Labour excluded the AMW from state-sponsored negotiations that eventually produced a settlement. The government also amended the Coal Mines Regulation Act to specify that

INDUSTRI AL VOLUNTARI SM I N DI ST R E S S

173

employers would only be required to remit dues to the union that had the greatest employee support based on a count of membership cards. The UMWA, with employer and state support, used this as a means of destroying its rival. A contested UMWA victory in the card count at Dosco was upheld by Justice John Doull, a former Tory MLA. After narrowly winning a card count at a mine in Springhill, UMWA supporters called a strike to force the employer to terminate AMW members. The AMW successfully sued on the basis that the strike constituted actionable intimidation, but well before the trial provincial mediators convinced the last AMW holdouts to return to the UMWA fold.46 The state response to miners’ strikes was largely a coercive one, but conciliation did play a minor role. IDIA conciliation was insignificant in this period, in part because the MWUC was opposed to it and in part because the scheme was never well institutionalized in the coalfields. But in two provinces, Alberta and Saskatchewan, New Dealstyle legislation applicable to the mining industry was passed. The Alberta statute, the Department of Trade and Industry Act, provided for the creation of legally enforceable trade codes governing prices and minimum employment standards. Minimum wages were to be established, in the first instance, through conferences between employer and employee representatives. Employee representatives were to be selected by the minister from among nominees of an employee association formed under the Act or trade union delegates. The Act prohibited employers from interfering with the activities of associations formed pursuant to it, but it was unclear whether this prohibition extended to the activities of trade unions. In the event no agreement on wages was reached, cabinet was empowered to impose minimum standards. The scheme, with some special provisions, applied to coalmining and distribution, but no code was created by agreement or through regulation, despite a demand for government action from Bob Livett, president of UMWA District 18.47 Saskatchewan pursued a minimum standards strategy in response to the miners’ grievances. In the first legislative session after the events at Estevan, the province revised its mining legislation to provide for an eight-hour day for underground miners and to eliminate abuses in the method of wage payment. Two years later, the province enacted a licensing scheme for the industry that required operators to furnish a schedule of wages and to pay employees at the stipulated rate. The following year the newly elected Liberal government repealed the scheme and replaced it with a code scheme that empowered the Minister of Natural Resources to promote the formation

174

LABOUR BEFOR E THE LAW

of associations of operators and employees and gave cabinet the power, after consultation with the parties, to make regulations regarding industry practices, including employment standards. As was the case in Alberta, however, the legislation was not used to regulate employment standards in the coal industry.48 In sum, efforts by some miners to resist deteriorating conditions were defeated by employer opposition, aided by their ability to invoke the coercive power of the state to protect their rights of property and contract. Still, the coal industry remained in a severely depressed state and coercion of organized labour could not solve its problems. Two governments experimented with interventionist policies aimed at bringing order to the coal industry and giving workers some protection against unfair conditions, and while these schemes recognized the need for some kind of worker voice, only Alberta, led by a UFA government that had formally affiliated with the CCF in 1933, was prepared, even weakly, to institutionalize a right for workers to organize for a limited purpose without employer interference. Logging and Sawmilling Employers in the logging and sawmilling industries, who had successfully resisted earlier organizing drives, were just as hostile to workers’ collective action in the 1930s. In the Maritimes, abysmally low wages led to forms of individual and collective resistance conducted independently of any formal trade union organization,49 while in British Columbia, Ontario, and Quebec the Lumber Workers’ Industrial Union (LWIU), a WUL affiliate, played a leading role in organizing substantial numbers of disgruntled workers. The resulting conflicts often became violent when employers attempted to operate with scab labour. This in turn led to heavy policing and numerous arrests and prosecutions. A few examples will suffice. A wave of strikes swept through BC beginning in the fall of 1931 when workers, recently organized by the LWIU, sought the restoration of wage rates and union recognition. Picket-line violence occurred during some of these strikes.50 A particularly bitter strike occurred at the Fraser Mills in Coquitlam, where an ethnically diverse workforce mobilized broad community support for their struggle. A mass picket line was established. Local police brought in a contingent of mounted city police from Vancouver, while the employer, the Canadian Western Lumber Company, armed its foremen and superintendents and mounted machine guns at the entrance to its mill. In the early days of the strike, a picket-line confrontation led to the arrest of 10 workers, charged with being members of an unlawful assembly. When the

INDUSTRI AL VOLUNTARI SM I N DI ST R E S S

175

accused were brought before the magistrate, a massive demonstration was held outside the courthouse. Schoolchildren on a ‘sympathy strike’ helped swell the ranks. Most charges were subsequently dropped but two of the arrested workers, who also had been charged with assaulting a constable, were convicted and sentenced to two days in jail. A delegation of concerned mill owners met with Conservative Premier S.F. Tolmie and his cabinet, and they received the government’s full support. Premier Tolmie announced that ‘Industry in this province is going to be protected to the fullest extent of the law. We have assured the lumbermen that when men want to work they are not prevented from doing so by any intimidation or otherwise.’ As well, the provincial Attorney General, R.W. Pooley, promised that the full resources of the province, backed by the federal government, would be available for this purpose. This did not become necessary since federal and provincial labour department officials and municipal authorities became involved and helped broker a settlement, although not before strikers and police clashed again when the company attempted to ship lumber. The workers made substantial gains, but were unable to obtain union recognition or a closed shop.51 In Ontario the LWIU was less active in the early years of the Depression as it regrouped following the defeats of 1929. More sustained resistance developed in the summer of 1933 and continued over the next two years. The largest strike occurred in November 1933 after a joint committee of the LWIU and the IWW was unable to reach an agreement with logging operators. It involved workers at Thunder Bay, Fort Frances, Hearst, Kapuskasing, Iroquois Falls, and neighbouring Rouyn, Quebec. There were numerous acts of violence and clashes with police when operators attempted to reopen camps with replacement workers. For example, in the Thunder Bay District at least 47 workers were arrested and convicted on charges of assault and unlawful assembly. Sentences included fines and imprisonment, and some workers were recommended for deportation at the expiration of their sentences. In Kapuskasing, the local OPP inspector blamed the trouble on the ‘Red’ element and the fact that three-quarters of the workforce were foreigners ‘who were easily led and influenced by these agitators.’ He sent two constables into each camp at the request of the Spruce Falls Pulp and Paper Co.52 The sharpest conflict, however, occurred in Rouyn after Canadian International Paper, the owner of the logging rights, announced several days into the strike that it planned to reopen two camps with replacement workers. The strike committee asked the Quebec Minister of Labour, J.C. Arcand, to send a mediator but he refused, claiming that

176

LABOUR BEFOR E THE LAW

he could not intervene since the strikers had quit their work. As the strikers mobilized, one of their organizers, Harry Racketti, was arrested and charged with sedition for a speech he gave. The following day picket lines went up, and after local police could not convince the strikers to let the replacements cross, the Riot Act was read and tear gas fired. In a matter of minutes the confrontation was over. Seventy-one people were arrested on the spot. Others, including the strike leaders, were subsequently detained. The strike collapsed, but the prosecutions continued. Seventyseven were flown to Amos and pleaded guilty. Sixty-four received suspended six-month sentences on the ground they had been led astray by their leaders. The others were sentenced to terms ranging from four months to one year. Nine people identified as leaders, including two women, were tried separately in Rouyn on a variety of charges, including sedition and inciting strikers to participate in an unlawful assembly. Two of the accused were freed. One of those, Mrs Evanik, was warned by the judge to stay home in the future and look after her children. Three were convicted of being members of an unlawful assembly and sentenced to terms ranging from three months to two years. The other two, Harry Racketti and Jeanne Corbin, a well-known CPC activist, had their cases remanded to the next assizes, which happened to be nearly a year away. Racketti was denied bail and kept in detention in Quebec City until April 1934, at which time he was released. Corbin could not make bail and remained in prison until her trial. Both were convicted. Corbin was sentenced to three months’ imprisonment, without consideration of the time spent in jail awaiting trial, while Racketti received six months.53 Clearly, all governments were willing to provide coercion to stop ‘irresponsible’ and unlawful trade union behaviour; but they were also being pressed to ameliorate the harsh conditions that led to radicalization. Workers who could not earn enough through seasonal logging employment added to the already heavy burden of relief carried by local authorities. As well, because nearly all logging was conducted on Crown lands pursuant to licences issued by the government, further justification existed for some sort of state regulation of employment conditions. Newfoundland, which already regulated many of the terms and conditions of loggers’ employment, added minimum wage clauses to its Logging Act in 1931. Three provinces—New Brunswick, Quebec, and Ontario—introduced legislative schemes in 1934 after the violent confrontations of the previous fall. In New Brunswick, despite the lack of organization among loggers themselves, the Conservative

INDUSTRI AL VOLUNTARI SM I N DI ST R E S S

177

government of Leonard Tilley faced demands from the press, the Liberal opposition, organized labour, and the public to do something to aid the woodsmen. In response the government passed the Forest Operations Commission Act. This Act empowered a commission to set industry-wide minimum wages and, upon the application of an employer or a group of five employees, to conduct an inquiry into a dispute over whether the minimum wages were being paid.54 In Quebec, the Liberal government of L.-A. Taschereau appointed a commission to examine the causes of the Rouyn conflict shortly after it ended. Although it placed much blame for the troubles on outside Communist agitators, the commission recognized that poor working conditions and low pay made workers receptive to radical ideas. Following discussions between the Ontario and Quebec ministers of lands and forests to co-ordinate their responses, the Quebec government introduced a bill to establish a commission vested with limited powers. Operators were required to notify the commission of the wages to be paid prior to starting work and workers would then be entitled to those wages. The commission could investigate complaints about illegally low wages, but it had no powers of enforcement. A worker paid less than the submitted schedule had to sue in court for the difference. Maurice Duplessis, the recently elected leader of the Conservative opposition, attacked the bill as inadequate and accused the sponsoring minister, Honoré Mercier, of showing sympathy for the exploiters of the people. Mercier countered by blaming the strike on outside Communist agitation, but Duplessis, whose anti-communism could not be questioned, dared the minister to deny that real abuses existed. Efforts in the upper chamber to allow the commission to establish minimum wages were also defeated, but an amendment was accepted to require that employers post the terms and conditions that had been reported to the commission. In short, the Act only guaranteed forest workers that there would be written and enforceable terms and conditions of employment at the start of the season.55 The Conservative Ontario government of George Henry, also feeling that it needed to be seen as sympathetic to the plight of the loggers, passed an Act providing for the appointment of an inspector authorized to investigate the woodsmen’s conditions of employment. Reports of the inspector were to be transmitted to the Minister of Lands and Forests, who could then make recommendations to operators or refer the reports to cabinet, which was empowered to promulgate binding regulations in respect of employment conditions. This approach was exceedingly cautious, heavily emphasizing quiet persuasion over state compulsion.56

178

LABOUR BEFOR E THE LAW

British Columbia’s response to discontent in the logging industry was heavily shaped by its distinct tradition of regulating men’s hours of work and wages going back to the turn of the century. In 1898, when labour-backed MLAs held the balance of power and were able to extract concessions from the government, an eight-hour day was enacted for underground miners and stationary engineers in metal mines, despite fierce employer resistance. This was extended to coal miners in 1904, smelter workers in 1907, and coke-oven and aboveground workers around coal and metal mines in 1918. In 1920, Richard J. Burde, the MLA from the Port Alberni lumber district, introduced a bill to provide for an eight-hour day in the lumber mills, justifying it, in part, on the unfair competition of Oriental workers who occupied a high proportion of the positions in the industry. The sawmill operators blocked this bill, but Burde persisted and in 1921 the government extended the eight-hour day to the lumber industry, construction, and mining, subject to exemptions granted by a Board of Adjustment. The law, however, could only be declared in force when other provinces promulgated similar legislation. Since none did, the legislation sat undeclared. Workers continued to lobby, and in 1923 the legislature re-enacted the same law, without the condition regarding other provinces. This came into force on 1 January 1925.57 The Liberals were re-elected in 1924 and enacted, again at Burde’s initiative, the Male Minimum Wage Act, making it the first province to pass such general legislation. Again, the elimination of unfair competition from Asian men in the industry was cited as a reason for such legislation. In the words of one legislator, ‘the bill would accomplish more to solve the Asiatic question in British Columbia than all the resolutions on the subject the Legislature ever sent to Ottawa.’ The statute empowered the Board of Adjustment to conduct investigations and set minimum wages for most industries. The first minimum wage set by the Board was in lumbering, but employers challenged its legality as soon as it was enforced. The BC courts rejected the employers’ arguments, but in a later case the Supreme Court of Canada upheld their claim that wages had to be set on a job-by-job basis, notwithstanding that this rendered the statutory scheme unworkable.58 By the time the Supreme Court of Canada issued its judgement, the Conservatives had dislodged the Liberals in British Columbia and the government was only willing to undo part of the damage the Supreme Court decision caused. The 1929 male minimum-wage law explicitly empowered a newly established Male Minimum Wage Board to set wages by occupation, but not by industry. Only two

INDUSTRI AL VOLUNTARI SM I N DI ST R E S S

179

orders were issued, one affecting stationary engineers, the other pharmacists. By then, however, the province was entering the Depression and there was little enthusiasm for minimum wages at a time of massive unemployment. The unrest in the sawmill towns in the early 1930s did not bring any change of direction by the provincial Conservatives.59 The turn to a more interventionist approach came in the fall 1933 election campaign. Duff Pattullo, the new Liberal leader, ran under the slogan ‘Wages and Work’. Like President Roosevelt in the United States, Pattullo believed the state had a responsibility to intervene in the economy so that the mass of the citizenry could obtain a decent standard of living. This was to be done through a socialization of capitalism, not its transformation. The Liberals swept to power in the election, but the CCF emerged as official opposition with 31 per cent of the vote.60 While Pattullo might have been drawing on the same pool of ideas as Roosevelt, the ‘new deal’ labour policy he offered was far different from that contained in the NIRA. Instead of a code scheme, Pattullo built on the existing practice of legislating employment standards. His reforms, moreover, did not envisage a role for trade unions or a collective voice for workers in the creation or administration of these schemes. The ineffective 1929 Male Minimum Wage Act was replaced by a new Act that empowered a Board of Industrial Relations to establish minimum wages on whatever basis it deemed advisable. It was also given jurisdiction over revised hours of work and female minimum-wage laws. Organized workers had no direct role to bargain collectively with employers over minimum standards in any of these schemes, nor was there a positive obligation on the government to consult with organized workers prior to issuing minimum-wage orders. Rather, the government was only required to appoint a labour representative as one of the five members of the Board, along with an employer representative. Shortly after the male minimum-wage scheme came into force, the Board issued its first two orders in April 1934. The first applied to logging, the second to sawmilling. Within its first year, the Board also issued orders covering retail and wholesale clerks, barbers, bakers, and taxi drivers, among others.61 In sum, none of the schemes in question were intended to promote collective bargaining of any sort in the logging and sawmilling industry. To the extent that collective action was considered in the design of these schemes, the intent was to make the soil less fertile for organizing by improving truly deplorable conditions. The unions

180

LABOUR BEFOR E THE LAW

in this industry, as well as in mining, were categorized as irresponsible and, therefore, not to be aided by accommodative government measures. Highly Competitive Industries While some sectors of the Canadian economy were dominated by large corporations, other sectors experienced intense competition among small firms and individually owned businesses. The Depression hit these many smaller businesses especially hard, leading to price cuts and downward pressure on wages and other conditions of work. Although some workers were unionized, most were not. WUL unions attempting to organize such firms faced strong employer resistance, including frequent resort to the infrastructure of coercion. Some employers, however, realized that their economic situation was untenable and that order had to be brought to the market if the downward spiral was to be stopped. Roosevelt’s plan for codes of fair practice attracted considerable interest, and some provincial governments experimented with such schemes, including means for taking labour costs out of competition. The needle trades and the furniture industry illustrate the patterns of conflict and state intervention in the competitive sector, but they were not the only industries subject to these economic stresses. Construction and retail trade, for example, were also locations of conflict and sources of support for some kind of new deal. The needle trades industry was characterized by the Royal Commission on Price Spreads in 1935 as economically unstable and excessively competitive. Low entry requirements, the presence of contract shops and homework, and the role of mass buyers combined to push prices to uneconomical levels, thereby forcing down wages and working conditions among the predominantly female workforce. Although the Depression had exacerbated this exploitative situation, it was not a new one. The ILGWU and the ACWA had limited success through the late 1920s in maintaining stable, city-wide agreements in Montreal and Toronto, the two centres of the industry. Partial and weak unionization increased the likelihood of picket-line violence as employers, under strong economic pressure to resist trade union demands, found unorganized workers willing to scab and police forces and courts available to protect private property and freedom of contract. On top of this, the needle-trade unions were wracked by factionalism. At first the struggles were internal, but in 1928 the Communists established a separate union, the Industrial Union of Needle Trades Workers (IUNTW), hoping eventually to displace their

INDUSTRI AL VOLUNTARI SM I N DI ST R E S S

181

rivals. They never succeeded and the resulting inter-union conflict complicated the problem of organizing a disorganized, fractious industry.62 The Toronto dressmaking industry exemplified these problems. In January 1931, the IUNTW called a general strike in the industry. Less than a quarter of the workers came out and the ILGWU, which was also in the process of reorganizing, provided strikebreakers. A few days into the strike, picketers attempted to block access to a building containing a number of shops. Police were called and 10 people—six women and four men—were arrested and charged with disorderly conduct. One striker received a sentence of 60 days in jail and the magistrate recommended he be deported upon his release. Eight others were fined $10 each plus costs. The strike was called off less than a week after it started.63 One month later the ILGWU called out its members in Toronto after failing to obtain an agreement with the dressmakers’ association, despite mediation efforts by the Ontario Department of Labour. Eighty per cent of the workers in 70 dress shops—1,200 men and 500 women—joined the strike. The employers were divided and one group, represented by J.L. Cohen, who until recently had been acting for unions and radicals, sought an injunction to prevent another group of employers from settling. Under these conditions, negotiations became extremely difficult, especially because no employer could be certain that the terms of a collective agreement would be binding on their competitors.64 At the beginning of the strike, workers were instructed by the union not to block access to buildings, to avoid violent confrontations, and generally to obey the law and the orders of the police. By the second day of the strike, however, tempers flared on the picket line and striking men and women were arrested. The police, however, took no action when striking workers were assaulted. Bernard Shane, the ILGWU organizer, complained to the Toronto Police Commission that the police were taking the side of the employer, while the Toronto District Labor Council wrote to W.H. Price, the Attorney General, alleging that arrested striking workers were facing higher bails and harsher sentences than employer thugs. In one case, a factory owner who was charged with assault for breaking the teeth, jaw, and cheekbone of a striking woman worker was acquitted by Police Magistrate Robert Browne on the ground of self-defence. Arrested women were taken to the women’s police court where Magistrate Margaret Patterson presided. She showed no sympathy to the picketers. A 17-yearold girl who had thrown a snowball at a scab was convicted of

182

LABOUR BEFOR E THE LAW

vagrancy and sentenced to 30 days in jail. Another girl was fined for assault and told she was ‘much too excitable to be on picket lines’. Over the course of the 10-week strike, more than 100 pickets were charged with offences such as disorderly conduct, assault, and intimidation. The harshest sentence was given to a man convicted of assaulting a woman strikebreaker. He received three months.65 Efforts by the Minister of Labour to reconcile the parties failed. By the time the strike was called off in May, some shops had settled with the ILGWU but others had not, leaving room for the IUNTW to continue organizing. After a brief strike in January 1934, it won a closed-shop agreement with 45 employers that also provided for wage increases, a 44-hour week, and a guarantee of no work on legal holidays and 1 May.66 Similar patterns of conflict can be observed in other sectors of the Toronto garment industry as various unions struggled to establish and maintain agreements. The police generally provided sufficient force to protect the right of employers to operate with replacement workers, but not always as much as was demanded. For example, during a strike of fur dressers and dyers organized by a WUL affiliate, J.L. Cohen, acting on behalf of the employers, wrote to D.C. Draper, the chief constable, complaining about the ‘constant programme of intimidation and threats’ being conducted by this ‘organization composed of Communists’. In a letter written the following day, Cohen complained about picketing taking place at a related employer. One can only imagine the pleasure Chief Constable Draper must have taken in replying to Cohen, the man who defended so many of the Communists he had prosecuted in the late twenties and early thirties: the Police are not empowered to interfere between pickets and employers so long as they keep within the law. . . . The pickets were quite within their rights in telling them that there was a strike in progress. If the police were to arrest every person who happens to be on the public sidewalk at that point . . . there would be an action for damages for false arrest. Of course, when there was picket-line violence, the police protected the strikebreakers and the employer’s property. Six strikers, three men and three women, were arrested on a variety of charges, including obstructing police and assault.67 Union organization in Montreal was weaker than in Toronto. A number of small strikes conducted during this early period were accompanied by picket-line violence, arrests, and prosecutions. In August 1934 the IUNTW felt strong enough to call a general strike

INDUSTRI AL VOLUNTARI SM I N DI ST R E S S

183

in the dress trade. Two thousand workers, the majority of whom were French-Canadian and Jewish women, joined. A few days later 500 male dress cutters walked out in sympathy. As in Toronto, police were more responsive to employer demands for protection than they were to those from the union. For example, numerous striking workers were arrested after being attacked on the street and at a union meeting hall, while none of the thugs hired by the employers, who had attacked them, were apprehended by the police. J.C. Arcand, the Quebec Minister of Labour, invited the parties to submit their dispute to arbitration under the provincial trade disputes legislation, but the union refused because of the WUL’s objection in principle to state conciliation or arbitration. Strategically, this may have been a mistake. As the strike dragged on into September support began to erode and the union, facing total defeat, terminated the strike at the end of the month. Although French Canadians had participated, the manufacturers targeted the Jewish workers. According to one estimate, over 1,200 were blacklisted.68 A similar pattern of struggle and resistance developed in the intensely competitive southern Ontario furniture industry. The WUL formed the Chesterfield and Furniture Workers’ International Union (CFWIU) in the summer of 1933 and attracted members in Toronto, Stratford, Kitchener, and some other smaller towns. When employers refused to accede to union demands, the workers struck. There was some picket-line violence and a few arrests were made in Toronto and Kitchener, but the most memorable confrontation occurred in Stratford. The strike was peaceful initially, but heated up after negotiations broke down and the manufacturers sought to reopen with police protection. The situation was further complicated when the WUL organized the largely female workforce at the Swift chicken-packing house in Stratford and brought them out on strike as well. A confrontation with police on that picket line caused local authorities to panic and they summoned the militia. The next morning, despite the presence of the militia, the picket lines thwarted efforts to open the factories. Unwilling to resort to increased repression, both the employers and the government began to explore alternative strategies. Even before the strike, Ontario furniture manufacturers showed interest in an NIRA-type code. During the strike they met in Toronto, in October 1933, to discuss the problem of cutthroat competition. At that time they agreed to a minimum-wage code for unskilled workers. No provision was made for collective bargaining and the minimum wage unilaterally established by the manufacturers was rejected by the striking workers as far too low. The government, for its part, also

184

LABOUR BEFOR E THE LAW

sought to end the dispute by other means. Attorney General William Price’s offer of a conciliator was rejected by the manufacturers and a government-appointed special investigator made little progress towards a settlement, in large measure because his top priority was to secure a resolution that excluded the WUL affiliate. By the beginning of November resistance was weakening, and after 57 days the strikers agreed to a settlement with only minor gains. Although the workers lost the strike, they took their revenge at the polls. In the December municipal elections, a vocal strike supporter was chosen as mayor, and six of the 10 council seats went to candidates endorsed by labour. In the provincial election the following spring, the Conservative MLA was soundly defeated.69 The events in Stratford exemplified the severe problems in the competitive sector. Employers were caught in a profit squeeze from which they could not escape through self-regulation. Trade union organization in these industries tended to be partial, creating fear among employers facing unionization that they would be placed at a competitive disadvantage compared to non-union manufacturers. This produced bitter conflicts that caused political problems for the state. Coercion against low-paid workers demanding a living wage was unpopular. Moreover, the existing infrastructure of conciliation was not very effective in these situations. Under these circumstances, constellations of political forces formed in a number of provinces in support of state-sponsored, joint industrial regulation schemes that formally institutionalized a role for trade union participation. Quebec, Ontario, and Alberta provide the most interesting case studies. Quebec Even before the Depression, Quebec had the best-developed infrastructure of accommodation, at least for Catholic unions. The Professional Syndicates Act (PSA) gave unions that incorporated under its terms the legal clout to enforce collective agreements. As well, Catholic unions obtained government support at a time when most unions faced increased coercion. In 1931, for example, the Taschereau government amended the PSA to reverse the effect of adverse court decisions. That same session, the government also created a separate Department of Labour and appointed J.C. Arcand as the first Minister of Labour and Gérard Tremblay, former secretary-general of the CTCC, as his deputy.70 Fine-tuning the PSA and giving labour issues a higher profile in government, however, were not adequate responses to the structural problems of the Depression. The legal power of trade unions to

INDUSTRI AL VOLUNTARI SM I N DI ST R E S S

185

enforce collective agreements did not compensate for their inability to get employers to enter into them in the first place. The earliest response to downward pressure on wages and working conditions was legislated minimum standards. This was first done through a measure that aimed to redistribute hours of work by empowering cabinet to shorten, on a regional and industrial basis, the length of the working day and week for manual workers. The law, however, did not apply to agriculture, and as a result of CMA lobbying, limits could not be imposed on industries facing competition from outside the province, effectively eliminating most manufacturing industries from the Act’s reach. The only role for trade unions in this process was a consultative one. Prior to decreeing a limitation, the government had to confer with organizations of workers and employers.71 In some sectors there was a willingness to go beyond stateimposed minimum standards towards a system of collectively bargained ones. Some precedent for this type of approach could be found in the English-speaking world, as both New Zealand and Australia had adopted a system of arbitration that allowed courts to extend the terms of an award to the industry. Quebec, however, drew on a European model that empowered the government to extend the terms of a collective agreement to all employers in the same industry in a particular region. Abbé Aimé Boileau, a chaplain to the Catholic unions in Montreal, studied the system in Belgium in the late 1920s and wrote about it on his return. The scheme was initially considered too radical by the CTCC, but by 1933 it passed a resolution calling on the government to enact extension legislation.72 A bill was introduced in the next session empowering the government to decree that the terms of a collective agreement arrived at between one or more employers and a bona fide organization of employees was binding on all employers and employees in the same trade or business in the region covered by the agreement, provided that the agreement had acquired sufficient importance and meaning for establishing labour conditions in the industry. As well, it required the parties to establish a joint committee vested with the responsibility for ensuring compliance with the extended agreement. This privatization of enforcement was unique to Quebec. Arcand justified collective agreement extension legislation on a number of grounds. Most important, it was a response to the economic crisis, which generated excessive competition and drove down the wages of workers. The pauperization of workers not only put pressure on government to provide relief, but it also depressed the buying power of the masses, thereby perpetuating the crisis. Arcand argued that collective

186

LABOUR BEFOR E THE LAW

agreement extension was preferable to minimum wages because wages would depend more on market conditions than on political pressure, experience with the female minimum wage demonstrated that the state was an indifferent protector of the standards it established, and minimum-wage laws undermined labour unions by depriving them of their negotiating function. Finally, the promotion of collective bargaining was desirable because it would encourage cooperation and a sense of social responsibility among employers and workers’ organizations.73 How, though, did extension legislation promote collective bargaining in the first place? Arcand did not spell out the theory but it rested on the assumption that employers would be less resistant to signing collective agreements if they were confident that, through the operation of the extension law, competing employers would be compelled to pay the same wage and could not gain a cost advantage by holding out against unionization. In short, the law provided a mechanism whereby organized employers and organized labour could jointly regulate the price of labour, thus reducing cutthroat competition and instability for employers and poverty wages for workers. As Bora Laskin noted: It would seem that one of the factors, which contributed to this extension, was the desire of organized industry, and organized labour in particular, to consolidate a position in industrial relations which it could not hope to maintain otherwise; for, unless unorganized industry were controlled and regulated by law in such a way as to compel uniformity in labour conditions, the possibility of economic coercion, arising from the disparity in conditions of labour in the same industry, could not be eliminated.74 Catholic unions were the major supporters of this approach. For them, the law was more than a pragmatic response to a conjunctural crisis; it was also a means of advancing their ideological commitment to social corporatism. The international unions opposed the bill, seeing it as a denial of voluntarism and as favouring Catholic unions. At a meeting with Taschereau, Arcand, and Tremblay, representatives of international unions expressed concern that the law would inhibit the growth of their unions, make strikes for wages higher than those that were imposed by extension unlawful, and be difficult for unincorporated unions to enforce. The employer community was also split. The Montreal Builders’ Exchange, whose members already had a long history of dealing with building trades unions, supported the legislation in principle, while the Quebec division of the CMA and the

INDUSTRI AL VOLUNTARI SM I N DI ST R E S S

187

Chamber of Commerce vociferously opposed the scheme, seeing it as a Trojan horse surreptitiously importing unionization and the closed shop.75 The bill was amended to meet some of the objections. A change in language sought to allay the fear of international unions that smaller Catholic unions would usurp the field by getting their contracts extended. As well, the government removed a provision that expressly authorized incorporated unions to enforce the collective agreement on behalf of individual members. The concern of the CMA and the Chamber of Commerce that the bill would disadvantage Quebec employers was addressed by empowering cabinet to refuse to apply the Act if its enforcement would cause ‘serious injury from the competition of foreign countries or of other provinces’. As well, in response to their fear that the Act might lead to compulsory union membership, it was expressly stipulated that nothing in the Act compelled an employer or an employee to become a member of an association.76 In its first year of operation, the law (popularly known as the ‘Arcand Act’) was used to extend some 20 agreements, including construction agreements covering 50,000 workers and boot-and-shoe agreements covering 25,000 workers. In 1935 the law was amended to redress some difficulties experienced in its operation. Most importantly, the enforcement powers of joint committees were strengthened. By the end of that year it was estimated that 135,000 workers, concentrated in the construction, dockworking, garment, baking, and barbering trades, were subject to extended agreements. Although international unions became involved, Catholic unions benefited disproportionately. The CTCC reported that its membership increased from 26,900 in 1933 to 38,000 by the end of 1935.77 Clearly, the scheme operated most effectively where collective bargaining had a strong foothold in an industry. Where it did not, the law only reduced employer resistance when it was fuelled by fear of local low-wage competition. Where competitive pressure came from further afield or employer resistance was ideological, the likelihood of new collective bargaining being fostered was low. This was the experience of most factory workers who failed to benefit from the legislation.78 Ontario Roosevelt’s NIRA code scheme attracted interest among some Ontario employers. For example, at hearings conducted by the Labour Committee of the Legislative Assembly in March 1934, construction industry representatives endorsed the NIRA approach, while union

188

LABOUR BEFOR E THE LAW

representatives supported a fair-wage system based on union rates. The committee called on the government to devise a code scheme for Ontario and recommended that tenders for public buildings and works should be based on prevailing union wage rates.79 Within the Department of Labour, the deputy minister, A.W. Crawford, was an early advocate of NIRA codes, which he saw as a means of countering the rising influence of the WUL in the garment industry and of reducing the cost of relief payments to indigent workers. The Conservative government, however, took no action during the 1934 legislative session. The decisive turn came with the victory of the Liberals in the June 1934 elections. Labour’s hope that the new government would be more responsive to their concerns was buoyed by the appointment of Arthur Roebuck, a labour lawyer who had represented the ILGWU, as Attorney General and Minister of Labour by Premier Mitch Hepburn. In the fall, Roebuck and his deputy, James F. Marsh, a former official of the Carpenters’ Union, intimated that they were working on legislation to establish a legal right to organize and bargain collectively. While both the TLC and ACCL supported this initiative, most large employers found it unpalatable. For example, the CMA’s Industrial Relations Committee had earlier come out against the NIRA system because ‘one of [its] principal features . . . is, of course, the principle of collective bargaining.’ Although there were pockets of support within the employer community, large employers successfully lobbied Hepburn, who publicly rebuked his minister.80 By this time, Hepburn’s tolerance for militant unionism was rapidly diminishing. For example, after Peter Heenan, his Minister of Lands and Forests, failed to settle a WUL-led strike of bushmen in September, Hepburn dispatched OPP reinforcements who, with help from the RCMP, city and railway police, and newly sworn constables, escorted replacement workers into the camps, breaking the strike. This was done over the head of Roebuck, his Minister of Labour. In the absence of government support for legally institutionalized collective bargaining, Roebuck constructed an alternative scheme that would indirectly facilitate unionization and provide a mechanism for establishing legally binding, fair (union) wage rates within an industry. The result was the Industrial Standards Act (ISA). It made no direct reference to trade unions or collective bargaining, but it allowed the Minister of Labour, upon the petition of representatives of employees or employers in an industry, to convene a conference of employees and employers to investigate the conditions of labour and negotiate standard wages and hours. It was contemplated that this would occur on the basis of geographic zones within an industry to be

INDUSTRI AL VOLUNTARI SM I N DI ST R E S S

189

defined by the minister. If, in the opinion of the minister, a schedule was agreed upon in writing ‘by a proper and sufficient representation of employees and employers’, cabinet could declare the schedule to be in force and binding on every employee and employer in the industrial zone to which the schedule applied. The Minimum Wage Board was given authority to order compliance with the schedules, but its orders were only enforceable through prosecutions. Upon conviction, a person could be fined or imprisoned in default and compelled to pay the amounts owed under the schedule. The Act also permitted employees and employers covered by a schedule to establish a joint local board to hear complaints, but these boards could not enforce their decisions. Notably, the Act did not apply to mining, agriculture, and the public sector.81 Like the Arcand Act, the ISA facilitated collective bargaining to the extent that it reduced employer fear of local low-wage competition. As a result, its appeal was limited to employers in intensely competitive, partly unionized industries who hoped that standardized wages and hours of work would provide some stability. James Marsh, the deputy minister of labour, explained the law’s purpose to a worried group of lumbermen: May I assure you that the principle behind the Act and the intent of the Government is to be helpful only to employers in industry in the matter of levelling out the wage costs as between employers and at the same time having given the employees the opportunity of discussing these matters with the employers openly and frankly with, if it is deemed necessary, an official of the Government presiding as chairman.82 Alberta The severity of the Depression in Alberta helped produce widespread support for legislation to create more orderly markets. In its Speech from the Throne to open the 1934 legislative session, the government of Premier John Brownlee announced its intention to pass legislation to stabilize prices and end unfair competition. One week later in a speech to the Retail Merchants Association, Brownlee called for the adoption of a modified NIRA code plan and received enthusiastic support from his audience. The subsequent bill was strongly opposed by much of the press and many large retailers and wholesalers but supported by small retailers. There was some debate concerning employee representation at code conferences, but a consensus was reached that allowed the minister to appoint ‘persons who he deems

190

LABOUR BEFOR E THE LAW

proper’ from among trade union or employee association delegates. The Act passed unanimously but was not to come into force until proclaimed, which did not happen until October 1935, after Brownlee had resigned and after the UFA government was voted from office. Few codes were subsequently established by agreement and the new Social Credit government indicated it was not prepared to impose codes on industry.83 The Alberta Federation of Labour also lobbied the UFA government to legislate reduced hours of work. George Hoadley, the newly appointed Minister of Trade and Industry, promised that the government would consider an eight-hour day, but no action was taken. With an election looming, however, the government was anxious to please. A bill to amend the Trade Disputes Act was tied up by opposition parties, and the government introduced the Industrial Standards Act, closely modelled on the recent Ontario legislation. Despite some employer opposition, the bill was quickly passed.84

Conclusion The regime of industrial voluntarism, with its strongly coercive and weakly accommodative infrastructure, worked reasonably well in most of Canada from 1925 to 1929. Corporate welfare schemes and rising standards of living for many workers provided a material and ideological foundation for the widespread belief by workers that their interests would be protected. Workers who did not share in the prosperity were more likely to become militant, but the coercive state apparatus effectively enforced the norms of voluntarism. As the Depression eroded the foundations of industrial voluntarism’s hegemony, workers—unemployed and employed—became radicalized. The CPC provided many workers with a program and, more importantly, organizational resources that helped them to articulate and act on their discontent and anger at a system that no longer seemed able to provide them decent living conditions. The delegitimation of the regime was so great that workers felt justified in defying the law and engaging in violent confrontations to protect their interests. The state initially met this challenge with coercion. Political and labour radicals were prosecuted and single unemployed men were isolated in remote work camps. Employers also freely invoked the infrastructure to coercion. As the Depression lingered, however, the state came under increasing pressure to assume a more active role in the economy, including the amelioration of harsh labour market conditions. Prime

INDUSTRI AL VOLUNTARI SM I N DI ST R E S S

191

Minister Bennett took up the challenge very late in his administration, but was hemmed in by the judiciary’s decentralized construction of the Canadian constitution. By this time, provincial politicians were being pressed to provide a ‘New Deal’ by their electorates, who were voting out Conservative incumbents. The nature of this ‘New Deal’ and the place of labour in it, however, were matters of intense debate and the range of responses varied. In general, governments sought to provide some minimum standards for workers, which often involved a minor role for trade unions, usually amounting to some form of bureaucratic consultation or a seat on a multipartite panel. In Quebec, Ontario, and Alberta industrial standards legislation gave trade unions and collective bargaining a larger role in bringing stability to competitive sectors of the economy, but the voluntary character of the regime was hardly threatened since agreements would only become industrial standards when a significant group of employers was willing to participate with the unions in a scheme of joint regulation. These first efforts were provisional, and the end of the 1933–4 strike wave gave governments a short breathing space, but the respite was temporary and the arrangements that had been made by the middle of the decade proved inadequate to stem the rising tide of labour militancy in the second half of the decade.85

8

Canada’s New Deals for Labour, 1936–1939

By the mid-1930s a limited accord had been reached between some sectors of labour and capital in some regions of the country, but with few exceptions the industrial workforce remained unorganized. The kind of regulatory unionism promoted by the industrial standards regime took root in only a few sectors and the older IDIA scheme, still the centrepiece of national labour relations policy, simply did not apply to most of the industrial workforce. Moreover, neither scheme was effective in the face of anti-union employers able to invoke the substratum of legal coercion to limit trade union activity in the name of protecting their rights of property and contract. The division of opinion between those employers willing to enter into stable collective bargaining relationships with responsible unions and those opposed to independent unions of any sort was reflected in the speeches given at a conference organized by the Institute on Economics and Politics in 1938. Speakers representing clothing manufacturers and building contractors, sectors in which the industrial standards regime operated, confidently reported that ‘Well-organized trade unions under sound and wise leadership improved conditions not only for workers but also for the honest manufacturer.’ In contrast, J.S. Willis, educational director for Canada Packers, touted the advantage of non-union plant relations committees as a ‘refinement of, and improvement upon the older conception of trade unionism’.1 As long as governments refused to prohibit employers from exercising their freedom of contract to discriminate against trade union members or to compel employers to recognize unions and require them to engage in collective bargaining, there was little prospect of trade union expansion. WUL-affiliated unions tried and failed to make 192

C ANADA’ S NEW DEALS FOR L A B O U R

193

significant gains in mass-production industries and, in the context of a weak economy and high unemployment, it was unlikely that worker self-organization could force recalcitrant employers to the bargaining table. The defeat of the unpopular Bennett government in October 1935 may have provided a measure of satisfaction to those opposed to its iron-heeled tactics and scornful of its late turn to New Deal policies, but there was little hope that Mackenzie King’s Liberals would initiate major reforms. During the election campaign the Liberals made few promises, and upon taking office King followed the same strategy he adopted in the 1920s: diminishing the role of government. While this relaxed the infrastructure of coercion, including repeal of section 98, less repressive sedition laws, and disbandment of the relief camps, it also meant that the King government was unwilling to follow the lead of the Roosevelt administration by expanding the federal government’s role in steering the economy and creating a new national labour relations policy.2 This stalemate, however, was broken by a series of developments that produced an outburst of labour militancy in 1937. This led to a further round of legislative initiatives that extended the coverage of ISA- and IDIA-supported collective bargaining, gave some protection for workers’ freedom of association, and brought men under minimumwage laws. Not surprisingly, the contours of this strike wave and the state response to it varied from province to province, reflecting the diverse and regional nature of Canada’s political economy. The resulting labour markets and the configuration of relations among labour, capital, and the state varied enormously, shaping the way governments responded to popular demands for economic justice. Populist sentiment, however, did not simply reflect economic conditions, but was filtered through ideological lenses that also varied regionally. Fragmented jurisdiction over labour relations, the legacy of the Snider decision, provided a constitutional framework that made these differences even more salient since each province was free to create a scheme to fit its particular constellation of economic, political, and ideological influences. This decentralized tendency was reinforced by the King government’s desire to absolve the federal government of direct responsibility for labour relations except in areas under direct federal jurisdiction or crucial to the national economy. King’s constitutional vision, his commitment to voluntarism in labour relations matters, and political expediency fuelled this approach. Labour relations policy was politically contentious, both as a class issue and in federal-provincial relations. For these reasons, not only did the federal government refuse to act on the repeated TLC requests for

194

LABOUR BEFOR E THE LAW

constitutional amendments that would secure federal competence over labour relations, but King counselled the labour movement to pursue its legislative reforms with provincial governments. Notwithstanding this diversity, nationally significant developments favoured certain commonalities in the development of labour relations policy. One was the decision by the Communist International in 1935 to pursue common front policies, including reunification of the trade union movement. In Canada, the WUL responded to the new line by proposing amalgamation to the TLC and the ACCL, but its overtures were not seriously entertained. As a result, at its final convention, the WUL directed its affiliates to negotiate their re-entry into mainstream unions. Various arrangements were reached, but the most significant result was that a corps of experienced trade union activists joined the ranks of TLC and ACCL unions, where they promoted a more militant and industrial brand of trade unionism.3 A second development was the establishment in the United States of the Congress of Industrial Organizations (CIO) in November 1935. Called together by John L. Lewis following the refusal of the AFL at its October convention to commit its resources to industrial unionism, leaders of the UMWA, ILGWU, and ACWA, as well as a number of smaller AFL affiliates, pledged their support for an aggressive organizing campaign among workers in the mass-production industries. They hoped to take advantage of the US National Labor Relations Act (NLRA— popularly known as the Wagner Act) passed earlier that year. The NLRA prohibited a variety of unfair labour practices, required employers to recognize and bargain with trade unions certified by the state because they enjoyed majority employee support, and created an administrative body, the National Labor Relations Board (NLRB), vested with the legal authority to issue enforceable orders. This constituted a fundamental shift from the existing collective bargaining regime, greatly enhancing the power of a state agency to determine the rules of the game and to coerce recalcitrant employers into participating. Not surprisingly, the NLRA was widely condemned by employers, who sought to have it declared unconstitutional. Its constitutionality was confirmed in 1937, and its passage lent legitimacy to trade unions and collective bargaining.4 However, the first militant organizing drives in the US did not benefit directly from the NLRA. Rather, rubber workers in 1936 and auto and steelworkers in 1937 cracked the wall of employer resistance by occupying their factories in violation of the law and by using their political influence with key state governors to limit the ability of employers to invoke state force to defend their property rights.

C ANADA’ S NEW DEALS FOR L A B O U R

195

In short, the new regime of industrial legality may have inspired workers to organize, but the temporary denial to employers of access to the old coercion made the crucial difference in these early CIO struggles.5 For all its militancy, though, the demands of the CIO unions were remarkably conservative. Although there was no lack of conflict within the CIO over its broader objectives and the means for achieving them, the leadership favoured responsible unionism, using militancy only as a tool to obtain recognition and better terms and conditions of employment, not as a means of challenging capitalist relations of production. In Canada, the establishment of the CIO and the passage of the Wagner Act in the United States had even less immediate resonance. In the January 1936 round of meetings between the federal government and the various trade union federations, only the ACCL, a union with little political influence in Ottawa, proposed legislation to protect the right of workers to join a union. Neither the TLC, which remained committed to craft principles of organization, nor the CTCC expressed interest in copying the recent American legislation.6 This changed at the 1936 TLC convention when the industrial unions affiliated with the CIO proposed a resolution urging the federal government to make employer discrimination against trade union members illegal. Following King’s advice, TLC president Paddy Draper informed the convention that the federal government lacked jurisdiction in this matter. Thus, the TLC Executive Council was instructed to draft a model bill guaranteeing workers’ right to bargain collectively through organizations of their own choosing and to lobby each provincial government to enact it.7 The resulting draft Freedom of Trade Union Association Act (FTUAA) was prepared, but it was more closely modelled on the NIRA labour provisions than on the Wagner Act. The draft act declared that workers could lawfully join trade unions and bargain collectively. This, of course, created no new law since these activities were already permitted. It also prohibited ‘yellow-dog’ contracts and made it an offence for an employer to discriminate based on union membership. Trade unions were defined as organizations of employees formed for the purpose of lawfully advancing the interests of employees, and that were not employer-dominated. These latter provisions were innovations for Canadian law since they would convert the privileges that workers already enjoyed into legally protected rights with correlative duties on employers, enforceable in law. The draft FTUAA, however, did not contain the principal innovations of the Wagner Act: employers were not required to recognize or bargain with trade

196

LABOUR BEFOR E THE LAW

unions and no administrative authority was vested with power to define appropriate bargaining units and certify trade unions as exclusive bargaining agents. This reticence to follow the Wagner Act stemmed from the AFL’s increasing concern that industrial unions were being favoured under the scheme.8 Debate over collective-bargaining policy widened in the TLC and increasingly echoed the growing rift in the American labour movement between AFL and CIO unions. At the 1937 TLC convention, industrial unions introduced a resolution regretting that the draft FTUAA did not follow the Wagner Act model. President Draper opposed the motion and an amended resolution was passed, merely stating that the Winnipeg Trades and Labour Council (the sponsor of the resolution) requested provincial labour bodies to obtain Wagner Act protections. When a similar resolution was introduced the following year, Draper reported that he had discussed the NLRA with officers of the AFL and ‘learned that it was not altogether satisfactory’. He warned that some of its features would not be ‘workable’ in Canada and urged the convention not to tie its executive’s hands. In the end, a compromise resolution was passed calling for a draft bill that could include the desirable features of the Wagner Act. At that same convention, Draper prevailed on the affiliates to support continued unity, but the matter was taken out of Canadian hands. At its November 1938 convention, the AFL ordered the TLC to expel the CIO affiliates. The TLC executive issued a suspension order in January 1939 and the expulsion was executed at the 1939 convention.9 During this same period, the labour movement’s political strategy was also being debated. ACCL leader Aaron Mosher had been actively involved in the formation of the CCF, but the mainstream of the trade union movement generally adopted a ‘hands-off’ approach, preferring instead to follow the AFL line of rewarding friends and punishing enemies. Although the CCF’s 1933 Regina Manifesto contained some items designed to attract labour support—including legislative protection of freedom of association and collective bargaining—the party leadership did not initially pursue an alliance with the TLC at the national level. This changed in the second half of the decade when the party drafted bylaws to permit union affiliation. Although the CCF refused to define itself as a party of organized labour, it actively promoted a social democratic/labourist political agenda and threatened to draw working-class support away from existing parties.10 In some provinces, the CCF presence strengthened lobbying efforts for a statutory right to organize and bargain collectively. As well, minimum-wage and fair-wage legislation was enacted in many

C ANADA’ S NEW DEALS FOR L A B O U R

197

provinces to protect the wages of men who did not benefit from ISAtype schemes or traditional collective bargaining. An equally important impetus for legislative action was the sudden outburst of union militancy in the early months of 1937, spurred by CIO organizing drives in major mass-production industries. Indeed, just as in the United States, 1937 was a watershed year that witnessed the largest number of strikes since the labour revolt following World War I.11 Labour conflict was greatest in Ontario and Quebec, the most heavily industrialized provinces, as new industrial organizing was resisted by employers who enjoyed strong support from provincial governments opposed to the spread of CIO-sponsored industrial unionism. Hepburn’s Liberal government in Ontario was the most recalcitrant. It was unwilling to enact any part of the TLC’s draft FTUAA, let alone compel employers to bargain with unions that demonstrated majority support. The only other province that refused to provide any protection to workers’ freedom of association was Prince Edward Island, which had little trade union activity. The Commission of Government in Newfoundland, not yet part of Canada, also offered no protection for freedom of association.12 Maurice Duplessis’s Union Nationale government in Quebec provided some statutory protection against employer discrimination in its collective agreement extension and fair-wage legislation, but it also banned the closed shop and made it easier to sue trade unions. Paradoxically, in the less industrialized provinces the greatest legislative gains were made. Nova Scotia, New Brunswick, Manitoba, Saskatchewan, Alberta, and British Columbia each passed some version of the TLC’s draft FTUAA during 1937–8, while Nova Scotia, Alberta, and British Columbia also imposed a duty to bargain. All of this was done over the objection of the Canadian Manufacturers’ Association, which did not publicly object to the principle of freedom of association but insisted that it must be accompanied by laws making it easier to hold trade unions legally responsible for their actions. Although most provincial statutes required constitutions and annual financial statements to be filed, only Quebec made it easier to sue unions.13 Even where laws were enacted compelling employers to bargain collectively with majority unions, they made little difference. In large measure, this was because the duty to bargain was simply grafted onto the existing regime of industrial regulation, which amply protected the rights of capital. In four provinces the new protections were inserted into statutes that extended IDIA-type compulsory conciliation to provincial disputes that had not been brought under the federal

198

LABOUR BEFOR E THE LAW

statute. This meant that fewer workers enjoyed the freedom to strike when they felt it was most advantageous to do so. Moreover, in a number of provinces, an additional hurdle was constructed before workers could lawfully strike; employees were first required to vote on board recommendations. As well, most of the statutes specifically preserved management’s freedom to suspend, transfer, lay off, or discharge any employee for proper and sufficient cause. Officials with the departments of labour, who were responsible for implementing these schemes, noted the difficulty of proving discharge for union activities. The reliance on judicial proceedings was seen by many as a further flaw. Departments of labour actively promoted collective bargaining, but they lacked the administrative machinery and power to police compliance with the prohibitions on unfair labour practices or the duty to bargain collectively. Legal compulsion, especially when directed against employer prerogatives, was still seen by many as anathema or futile.14 In short, not only were workers’ collective bargaining rights weakly enforced, but employers’ rights of property and contract were as strongly protected as ever. On the whole, judges remained hostile to the collective action of workers, leading Bora Laskin to ask ‘whether Canadian courts will arrive at the position that any picketing which is likely to be effective must be prohibited’. Injunctions and police clubs had a stronger effect on the outcome of a strike than the remote possibility of an employer being fined $100 for firing a worker who joined a trade union. As Max Federman, a leader of the Toronto fur workers’ union, noted in the midst of the TLC’s 1936 debate on the right to organize, ‘We may ask for protection in our rights to organize but when we attempt to secure the things we organized for we are faced with the injunction and jail.’ The enactment of an amendment to the Criminal Code in 1939 making it an offence to refuse to employ or to dismiss a person for the sole reason of being a member of a lawful trade union, to use intimidation to prevent a worker from joining a union, or to conspire with other employers to do the above made little difference.15

Raising the Floor in Competitive Industries: Wage Protection and Regulatory Unionism In the first half of the 1930s provincial governments reacted to the problem of poverty wages in highly competitive sectors by legislating ISA-type schemes and minimum standards. During the second half of the decade, these schemes were extended and modified. With the

C ANADA’ S NEW DEALS FOR L A B O U R

199

exception of British Columbia, with its longer history of male minimum-wage regulation, collectively bargained industrial standards were preferred to minimum or fair wages because they deviated less from the principle of voluntarism. But even when governments set minimum or fair wages, they sought to minimize the disturbance of local labour markets by adopting consultative procedures and policies that respected existing sectoral and geographic differentials. In some cases, industrial standards and regulatory unionism were established without legislative support. For example, in 1935 Sam Herbst, an ILGWU organizer, constructed a brand of top-down regulatory unionism with the active co-operation of Winnipeg’s leading manufacturers. He signed his first contract, a closed-shop agreement, before a single employee signed a union card. As other manufacturers signed contracts, their employees followed them into the union. Not a single strike was conducted by an ILGWU local under Herbst’s reign.16 Herbst soon learned, however, that not all employers were amenable to joint regulation and that they could mobilize the coercive legal infrastructure in aid of their resistance. Winnipeg’s fur manufacturers rejected Herbst’s overtures to sign contracts with the International Furriers’ Union. Three hundred employees from 33 establishments struck in August 1936. Hurtig’s fur business became a focal point of the struggle. Mass picketing was accompanied by some violence, resulting in the arrest of several strikers. When the picketing continued, Hurtig sued the union and obtained a sweeping injunction, but this did not end the dispute or the picketing and additional workers were arrested. The government appointed a commissioner to inquire into the dispute in November, but his report was not issued until June 1937, well after the strike was lost. Hurtig pursued his lawsuit against the union and Justice J.E. Adamson not only found that the picketing was a nuisance, but expressed anger that public officials had not intervened more forcibly to protect property and keep the peace. Particularly galling to Adamson was that the strike was financed by a ‘foreign organization’ and ‘largely led and organized by aliens’. He complained: ‘That aliens should be allowed to remain here and conspire against public order indicates weakness somewhere. . . . Mob law is being organized and is growing; how far is the law going to bow before it?’ This experience, in conjunction with a failed attempt to use the minimum-wage laws (which had been extended to men in 1934) against the furriers, probably motivated the Manitoba executive of the TLC to lobby the provincial government for the enactment of an ISA during the 1938 legislative session. The government complied through amendments to its Fair Wage Act.17

200

LABOUR BEFOR E THE LAW

But compulsory ISA laws were not a panacea since employer cooperation was required for their implementation. Nova Scotia dealt with this condition by passing legislation that applied exclusively to the construction industry in the Dartmouth-Halifax area, where contractors and building trades unions were receptive to regulatory unionism, but other provinces enacted schemes of more general application, leaving it for the parties to opt in.18 The willingness to do so, however, was limited. In Ontario, for example, 80 per cent of the ISA schedules were in previously unionized industries. The law was most successful in the construction industry, which was responsible for 29 of the 35 schedules created in its first year of operation. The only industrial settings that produced schedules were the Toronto garment industry and the furniture industry outside Toronto. Although many other newly unionized workers sought to use the ISA, few succeeded in negotiating a schedule with employers in their industry. Petitions failed in 70 out of the 105 applications, either because the parties could not reach an agreement or because the representation of employers or employees was insufficient in the government’s view for the agreement to be made binding. Even where schedules were operative, it was enormously difficult to have them enforced against ‘chiselling’ employers. The government refused to put its weight behind the scheme, leaving advisory boards with primary responsibility for supervising the schedules but without legal authority to enforce them. This power was vested with the Ontario Minimum Wage Board (MWB). The MWB, however, lacked the staff and the inclination to enforce the Act vigorously, and in those instances where prosecutions were undertaken the courts were often unsympathetic. In short, the scheme was still firmly rooted in the regime of market voluntarism as it depended on the willingness and ability of employers and organized workers to co-operate in establishing, policing, and enforcing schedules.19 The ISA was amended in 1936 and again in 1937 to address some of its perceived deficiencies, but these changes had little effect. As well, in 1936 the Ontario government enacted a fair-wage law for government contracts. By then, many employers who initially supported regulatory unionism were beginning to see male minimum-wage legislation as a preferable alternative to both the ISA and fair-wage schemes. The government, for its part, hoped that male minimumwage legislation would help to break the wave of industrial conflict sweeping across the province by ameliorating conditions among the lowest-paid men, but the enactment of the Minimum Wage Act in 1937 did little either to restore prosperity or to promote industrial

C ANADA’ S NEW DEALS FOR L A B O U R

201

peace. A new agency, the Industry and Labour Board (ILB), was established and given jurisdiction over the ISA and the male and female minimum-wage schemes, but it was no more active than its predecessor, the Minimum Wage Board (MWB). Indeed, between 1937 and the outbreak of World War II the ILB only issued a male wage order for the textile industry, in 1938, after a series of bitter strikes.20 Other provinces responded to the problem of poverty wages by using different combinations of ISA-type and minimum-wage and fair-wage schemes. In New Brunswick, for example, the Liberals, led by A. Allison Dysart, a man who professed sympathy for organized labour, swept the Conservatives from power in the June 1935 elections. At the next legislative session, the government passed the Fair Wages Act in response to a demand by the New Brunswick Federation of Labour. The Act provided that a fair-wage officer could conduct investigations to determine the adequacy of employment conditions in any trade. Where unfair conditions were found to exist, the officer could direct that a conference of employers and employees be held for the purpose of arriving at a voluntary adjustment. If no agreement was reached, the minister could direct the Fair Wages Board to impose terms and conditions of employment.21 The Fair Wages Act was a flexible instrument, combining both ISA support for negotiated industry standards and state wage-fixing where ‘unfair’ conditions persisted. Yet, like in other provinces, collectively bargained standards were only created where unionized workers were accepted by employers as partners in a scheme of regulatory unionism and, without agreement, the state was reluctant to interfere with market processes by imposing wage orders for men. In practice, the Act did little either to promote collective bargaining or to provide fair wages. In total, about 16 orders were issued prior to 1940, each applying to one or two plants only, and few of the orders were published, limiting their impact on prevailing wage rates.22 Alberta’s Social Credit government, also elected in the summer of 1935, inherited an NIRA code law and an ISA, passed by the previous UFA government. Ernest Manning was the minister in charge of both. Under his leadership, NIRA-type codes were promulgated for retail, cleaning and dyeing, and commercial printing industries. They all contained some variant of the NIRA labour provisions guaranteeing the right of workers to form trade unions for the purposes of collective bargaining. Codes were subsequently issued for a variety of other service trades, but as opposition from both business and labour grew, the codes were allowed to lapse. The Alberta Federation of Labour preferred minimum standards and in 1936 the government first

202

LABOUR BEFOR E THE LAW

enacted a male minimum-wage law and then later passed the Hours of Work Act, which established an eight-hour day and 48-hour week for women and, to labour’s disappointment, a nine-hour day and 54hour week for men. As well, it also established a Board of Industrial Relations, which was given broad powers to administer the ISA as well as the male and female minimum-wage acts. The implementation of these laws, however, proved disappointing. ISA schedules, like in most provinces, were mostly negotiated in the construction industry and minimum-wage orders were few in number, set low, and contained numerous exceptions. The enforcement of minimum standards was also a source of complaint, due in large part to unsympathetic magistrates and judges. The Alberta Federation of Labour demanded both higher rates and the establishment of a separate Department of Labour because ‘social labour legislation is so different in its character from other types of legislation, it can only be made of real value to workers through effective administration.’ In 1938 the government amended the male minimum-wage law to empower the Board to establish ‘fair’ wages, but the situation did not improve.23 The most extensive and effective schemes of regulation were enacted in Quebec, the second most industrialized province in Canada, where production was concentrated in highly competitive light manufacturing. The institutionalization of Catholic social corporatism, involving CTCC unions that obtained legal status under the Professional Syndicates Act and established co-operative relations with some employers, helped lay the groundwork for this approach. It was also supported by Maurice Duplessis and the Union Nationale, which swept to power in the August 1936 election. Although Duplessis professed an intense hatred of communism and international unionism, he voiced sympathy for the poor working man and so his government was inclined to support collective bargaining of a particular kind, as well as minimum-wage protection. Quebec’s version of the ISA, the Collective Labour Agreements Extension Act, became an instrument for Duplessis to pursue his agenda of impeding the spread of international unionism. This bias became apparent when the ILGWU, one of the CIO’s founding unions, began organizing among the Montreal dressmakers following the unsuccessful efforts of the IUNTW. Two American organizers, Bernard Shane and Rose Pesotta, were joined by Raoul Trépanier, president of the Montreal Trades and Labour Council, to lead the drive. At the same time, and perhaps with the collusion of the employers, a Catholic union began organizing and concluded an agreement with

C ANADA’ S NEW DEALS FOR L A B O U R

203

the Dressmakers Guild in Montreal early in 1937. This agreement was extended under the extension law. The ILGWU campaign continued, however, and on the 15th of April, five days after the Catholic union’s agreement was extended, 4,000 dressmakers went out on strike. The provincial government mediated the dispute, but discussions collapsed when the parties could not agree on a mechanism for selecting trade union representatives to the joint committee that would administer any collective agreement extended by decree. Although the picket lines were generally peaceful, Shane and Trépanier were threatened that they would be arrested, held without bail, and charged with conspiracy against public order if they refused to end the strike. In a legislative debate on the strike, Duplessis denounced the communistic CIO and its attempts to displace authentically Québécois unions. The dress manufacturers, however, were less interested in Duplessis’s crusade than in restoring production and soon signed a union-shop agreement with the ILGWU. That agreement, however, like others before it, proved to be difficult to enforce and it took another strike in 1940 to stabilize regulatory unionism in the Montreal dress trade.24 Prior to the dressmakers’ strike, the Duplessis government had appointed a commission, with representatives of the different labour federations, to review the extension law. Following its report in May the government introduced legislation making a variety of changes, including ones giving it greater control over the process. One amendment empowered cabinet to alter unilaterally the terms of the agreement that was being extended. A second identified what constituted an association for the purpose of the scheme. Unincorporated bodies were only recognized as associations if they were ‘bona fide’. This term was not defined, giving cabinet considerable leeway in determining whether a body could petition for a decree. Moreover, the definition also stipulated that to be a recognized association a group had to pursue its objects ‘with respect for law and constituted authority’. As one newspaper noted at the time, ‘the Minister will have power to bar organizations which he believes to be Communistic.’25 That same session the Quebec government introduced new minimum standards legislation. First, it passed a law regulating forestry workers’ wages that, unlike its predecessor, gave cabinet the power to establish minimum wages. Of far greater significance, though, was the Fair Wage Act. Introduced and passed on the last day of the session, it was designed as a companion to the collective agreement extension law and applied only to employees who did not avail themselves of the extension law or to an association of employees

204

LABOUR BEFOR E THE LAW

unable to obtain an agreement with employers. The Fair Wage Board was empowered to fix wages and working hours, subject to cabinet approval, and to convene bipartite conciliation committees for the purpose of establishing agreements on fair working conditions. If approved by the Board, these agreements would be made legally binding.26 The leaderships of both the international and Catholic unions were concerned about these statutes. While both feared that the fair-wage scheme would become a substitute for unionization and collective bargaining, they had different criticisms of the extension law. The international unions worried about the ‘dictatorial’ powers given to the minister to determine the competence of an association to negotiate an agreement and whether an agreement had preponderant significance so that it could be extended by decree—such ministerial freedom, after all, might be used to keep them out of the province. By contrast, the Catholic unions were critical because the extension law did not compel the international unions to register under the Professional Syndicates Act and become legal entities as a condition of participating in the scheme.27 The unions’ fears about the anti-union potential of the Fair Wage Act materialized in the textile industry, where a Catholic union began an organizing drive in the summer of 1937. That August about 9,000 employees of Dominion Textile in Montreal and various cities around the province struck for an agreement and improved terms and conditions. The union proposed that an agreement be made under the extension legislation while the employer, with support from the Minister of Labour, proposed that conditions should be set by the Fair Wage Board. This was rejected by the union. As the strike wore on, pickets clashed with police and over a dozen strikers were arrested. Eventually, Duplessis intervened and the parties accepted a compromise. Dominion Textile agreed to negotiate a collective agreement with an employee committee composed of an equal number of representatives of union and non-union supporters on the condition that there would not be a closed shop. In the interim, work conditions would be governed by an award of the Fair Wage Board.28 In sum, most provincial governments accepted that excess wage competition was undesirable and that legislation to counter its effects was needed. ISA schemes facilitated the establishment of regulatory unionism but were only effective if there was sufficient employer support for such a project. Outside the construction industry this was uncommon. Minimum-wage and fair-wage laws were an alternative way of countering competitive pressures, but these schemes were

C ANADA’ S NEW DEALS FOR L A B O U R

205

designed and administered in a way that produced low minimums and respected regional and industry differences. Moreover, none of these schemes addressed the rising tide of industrial conflict resulting from the resistance of employers to the new wave of industrial union organizing.

Reforming the Legal Framework of Collective Bargaining The contours of industrial conflict and the political and ideological terrain on which labour’s and capital’s demands on the state were negotiated varied significantly from province to province. The most heavily industrialized province, Ontario, was the most resistant to labour’s demand for legal protection of freedom of association and collective bargaining, while others moved tentatively towards the establishment of a new regime of industrial legality. To appreciate both the dynamics and range of responses to this dimension of the growing crisis of industrial voluntarism, the interplay of interests, institutions, and ideas at the provincial level is key. Ontario, as Canada’s most industrialized province, was the site of the highest level of strike activity. Worker militancy and employer resistance were not confined to the mass-production industries the CIO was attempting to organize. Hotel and restaurant employees, textile workers, and boot-and-shoe operatives, organized under the auspices of TLC-affiliated unions, also fought to establish union shops over the strenuous opposition of employers, backed by the coercive power of the courts. The strike against Bassel’s Lunch in Toronto is illustrative. In an effort to forestall unionization, Bassel’s Lunch required its employees to sign individual contracts of employment stipulating that neither they nor anyone on their behalf would, at any time, engage in picketing or any other form of strike activity. When workers who signed these contracts subsequently struck and picketed, Bassel’s Lunch obtained an interim injunction from Justice A.C. Kingstone on the ground that the picketing, although otherwise lawful, was in breach of contract. The judge made no comment on the extraordinary nature of the contractual limitations. In a scathing critique of the decision, Bora Laskin noted that ‘it is difficult to imagine that such attempted perpetual suppression of opinion could be countenanced under any democratic regime of law.’ When the picketing did not cease, the named defendants were found to be in contempt of court and severely reprimanded. Picketing then resumed by individuals who were not employed by Bassel’s but who were connected to the

206

LABOUR BEFOR E THE LAW

Hotel and Restaurant Employees’ Union. Bassel’s brought another contempt application, which was dismissed at first instance but granted on appeal by Justice William Renwick Riddell, who had no patience for refined legal argument. The dignity of the court was at stake and the union was making a farce of the court’s orders. After finding the respondents in contempt, he turned to the question of punishment. Without a trace of irony, Judge Riddell continued: ‘The names of the respondents indicate that they are not of British birth, and they may not have absorbed the genius of our laws; but they cannot be allowed to violate them with impunity.’ Riddell imposed 10-day jail terms, but subsequently agreed to stay the punishment after being assured that the picketing would stop immediately.29 Much of the new industrial organizing, however, was taking place in large establishments employing hundreds or, sometimes, thousands of workers. This made it more difficult for employers to vindicate their rights simply by going to court; they also needed the state to provide sufficient force to defend property and contract rights. Ontario Premier Mitch Hepburn, motivated by his intense hostility to the CIO and industrial unionism generally, was inclined to provide such assistance, but Department of Labour officials preferred to craft compromises, without legal compulsion, based on employer acceptance of the right to organize and union acceptance of the open shop and no formal recognition. The first CIO drives in Ontario often used unlawful tactics, which on several occasions attracted a police response. For example, in June 1936, 75 men and women employed at the Colonial Footwear Company in Toronto occupied the factory for two days to win the reinstatement of a fired worker, making this the first sit-down strike in Canada. Textile workers in Cornwall and Welland, organized in the revitalized United Textile Workers of America, conducted two large strikes, both of which resulted in police involvement. In the Cornwall strike, provincial police provided reinforcements to arrest numerous picketers, who were charged with such crimes as intimidation, obstruction, and assault. At the Kelsey-Hayes plant in Windsor, discontented workers joined the United Automobile Workers (UAW) and conducted a sit-down strike. Within four hours they were removed by police. The following morning they tried to block entry to the plant and a pitched battle with police and strikebreakers resulted in the arrest of five picketers.30 Industrial militancy increased in 1937 and short-lived sit-downs occurred in Chatham, Oshawa, and Kingsville, but a more sustained sit-down strike in Point Edward, near Sarnia, fully revealed the extent

C ANADA’ S NEW DEALS FOR L A B O U R

207

to which authorities would go to protect the property rights of employers. Approximately 60 employees of the Holmes Foundry occupied the factory on 1 March 1937, following the refusal of the company to negotiate with a delegation of the newly formed Steel Workers Organizing Committee Local 1232. The workforce, however, was not united. Only a minority, mostly recruited from among the Central Europeans, participated in the action. The majority of the workers were of British descent and remained loyal to the company. This division was skilfully exploited by the employer and the local Point Edward police, who lacked the resources to evict the strikers or to execute the arrest warrants obtained from the local magistrate. When assistance could not be obtained from the Sarnia police or, initially, from the OPP (who were under instructions only to assist municipal police forces in case of riots), the local police chief and the plant manager organized the non-striking Holmes employees into a vigilante force of over 300 that forcibly evicted the sit-down strikers, injuring 20 so seriously they required hospitalization. Police watched the assault and arrested 66 strikers, of whom 55 were subsequently convicted, but only given suspended sentences and a warning by the magistrate: ‘I think you men are more foolish—stupid, if you like— than you are criminal. . . . But you people who come from various parts of the world will have to learn to live according to our laws.’31 Efforts by labour to have the attack investigated were thwarted at all levels. In the Ontario legislature Sam Lawrence, the only CCF member at the time, demanded that the Attorney General, Arthur Roebuck, hold an inquiry. Before he could answer, Premier Hepburn intervened: Those who participate in sit-down strikes are trespassers and trespassing is illegal in this province. There will be no sit-down strikes in Ontario. This government is going to maintain law and order at all costs, and I have no sympathy for sit-down strikers. I have more sympathy with those who attempted to eject the strikers. The Dominion government was of a similar view. Replying to a question in the House, the Minister of Justice, Ernest Lapointe, while recognizing that provincial governments had responsibility for the administration of justice, stated that ‘The sit-down strike shall not be permitted to obtain any footing here. . . . But the Dominion Government is prepared to utilize all the resources and agencies at its command and to the extent of its legal powers to the end of restraining and eliminating this illegal mode of operation.’ Clearly, sit-down strikes directly challenged capitalist property relations. In the view of

208

LABOUR BEFOR E THE LAW

the conservative Canadian Observer this threatened not only ‘to undermine capitalism, but to destroy the very keystone of civilization’. In contrast, progressive voices, like Canadian Forum, supported the challenge because, under modern industrial conditions, ‘plant and its machines are by morals and equity as much the property of the men that work them as of the men who draw the dividends.’ Predictably, this latter argument did not hold sway. Factory owners in Ontario were able to obtain direct and indirect assistance from every level of government to defeat sit-down strikes.32 In such a political and legal climate, the sit-down strike was not a viable tactic. More complete organization and fuller participation in strike activities were required to shut down employers’ operations without resort to blatantly unlawful acts. This was the approach taken at the General Motors plant in Oshawa that employed some 4,000 workers. Following GM’s settlement with the UAW in the United States, the majority of its employees in Oshawa signed up with the newly established Canadian UAW Local 222. The union first struck the Coulter plant, a manufacturer of auto parts for GM in Oshawa. A brief sitdown and some picket-line violence led the mayor to warn that such tactics would not be tolerated. However, Attorney General Roebuck declined to send OPP reinforcements and Coulter signed a contract recognizing the UAW.33 Attention then turned to the GM plant, and in the course of this confrontation rifts between state officials favouring coercion and those favouring conciliation broke out into the open. The Minister of Labour, David Croll, attempted to mediate the dispute before the workers struck, but GM was adamant that it would not sign an agreement with the CIO. Mitch Hepburn’s support for GM toughened the company’s resolve, and on 8 April the strike began.34 To win this showdown with the CIO, Hepburn’s first priority was to strengthen the police forces. Earlier in March, at a meeting that included George McCullagh, editor of the Globe and an ardent CIO opponent, two representatives of GM, and officials from the Attorney General’s office and the OPP, Hepburn ordered the special branch of the OPP to maintain surveillance over CIO meetings in the province. He also obtained a commitment from Ernest Lapointe, federal Minister of Justice, to provide 100 RCMP officers to back up municipal and provincial police. After the strike began, Hepburn’s demand for more RCMP support was firmly rejected by Mackenzie King and Norm Rogers, federal Minister of Labour, who did not want to align the federal government with Hepburn’s anti-CIO crusade. They reiterated their support for the right of workers to organize for lawful purposes.

C ANADA’ S NEW DEALS FOR L A B O U R

209

An infuriated Hepburn ordered the provincial police to recruit 200–400 special officers and obtained the resignation of Labour Minister Croll and Attorney General Roebuck, the two members of his cabinet who opposed his strategy. This was followed by Croll’s memorable announcement that ‘my place is marching with the workers rather than riding with General Motors.’35 Notwithstanding all his bluster, Hepburn did not want another Regina Riot, and besides, there was no lawbreaking to justify a massive police intervention. Moreover, GM was more anxious to resume production than to be the bulwark against the CIO—it signed an agreement that denied formal recognition to the union but practically accepted its representative capacity. Despite this victory, employer resistance remained strong. Although the UAW secured settlements with some GM plants in Windsor and St Catharines, Chrysler and Ford remained largely unorganized. Major CIO affiliates, including the SWOC, the United Electrical Workers, and the International Mine, Mill and Smelter Workers’ Union, were unable to make progress in their respective organizing efforts.36 The chilly post-Oshawa organizing environment shaped the drive mounted by the United Rubber Workers of America (URWA) in southwestern Ontario. A brief sit-down followed by a 10-day conventional strike at the B.F. Goodrich plant in late March-early April 1937 produced a wage increase and a promise that the union would be consulted about future layoffs. After that, the URWA made little progress. In some plants employers fired union activists; in others they withstood strikes. The September-October 1937 strike at the A.R. Kaufman Rubber Co. in Kitchener was settled only after the Department of Labour pressured Kaufman into agreeing that he would not discriminate against union members and that disputed issues would be submitted to the Industry and Labour Board for determination. But even this compromise collapsed after the strike ended, as Kaufman insisted that he had only agreed not to discriminate until 1 December and promised that afterwards there would be ‘plenty of discrimination’. As well, the ILB recommended no intervention or investigation of conditions on the ground that disputed wages should be resolved through collective bargaining.37 Kaufman’s recalcitrance was fortified by Hepburn’s re-election in the midst of the strike. In rejecting an invitation from the Department of Labour to attend a negotiating conference, the company stated: ‘we hope that at least 25 Provincial Police with tear gas and clubs will be sent. . . . During the Oshawa strike Mr Hepburn stated his sentiments in no uncertain terms and in view of his re-election we believe

210

LABOUR BEFOR E THE LAW

he has a mandate to preserve industrial peace in Ontario.’ Kaufman did not get the full force he wanted, but he got about as much as he needed. Even as the department was busy conciliating, police arrested over 20 male and female strikers who blocked a loaded railway car from leaving Kaufman’s premises.38 Renewed organizing efforts in late winter 1938 and early spring 1939 were met with a mix of conciliation and coercion. Strikes at two subsidiaries of the United States Rubber Corporation brought out 1,000 workers. Municipal officials and mediators from the Department of Labour became actively involved, but it was the refusal of the Kitchener mayor, George W. Gordon, to support the introduction of replacement workers that proved decisive. Shortly after, a settlement was reached that provided for recognition of the URWA as exclusive bargaining agent, the establishment of a grievance committee, seniority and overtime rules, and the submission of the wage issue to arbitration.39 This crack in the anti-union rubber front, however, could not be opened further. When workers at the shoe division of B.F. Goodrich struck, officials from the Department of Labour tried unsuccessfully to mediate. After nearly a month, the union, in desperation, applied unilaterally for conciliation under the IDIA, but was rejected because the rubber industry was outside the ambit of the Act’s compulsory provisions. The union then extended the strike to the tire division and B.F. Goodrich attempted to secure local police protection to assist strikebreakers across the picket line. The local police commission, seeking to stay out of the fray and, perhaps, to avoid incurring additional costs, turned down the request, but suggested that if the company obtained a court injunction the county sheriff would solicit the necessary manpower to enforce it. Again, Mayor Gordon’s intervention proved decisive, but this time, for reasons that are not apparent, he reversed his earlier stance and promised that he would call on the provincial police if the company presented evidence of impending violence. Emboldened by this guarantee, B.F. Goodrich tried to bring 20 of its inspectors across the line. They were met by mass picketing and, after a tense shoving match with police, 73 workers were arrested, five for obstructing police and 68 for watching and besetting. With a visit from the King and Queen to Kitchener scheduled for 6 June, Mayor Gordon desperately wanted to avoid any embarrassing incidents. He prevailed on the parties to suspend the strike for the day and requested the personal intervention of the Labour Minister, Norman Hipel. Three days after the visit, a settlement was reached.

C ANADA’ S NEW DEALS FOR L A B O U R

211

Although the company agreed not to discriminate against union members, the strike failed to achieve its major goals: recognition and a signed agreement.40 In sum, employers in Ontario benefited from the commitment of the judiciary and the provincial government to protect their rights of property and contract. Of course, these rights were imperfectly protected, and local officials could not always be counted on to provide the level of coercion employers demanded. Moreover, strikers had some legally protected rights that could not be completely ignored. For example, Attorney General Gordon Conant directed his law officers to recognize and respect the distinction between legal persuasion and unlawful intimidation and violence. At the same time, however, he emphasized that striking workers could not be permitted to interfere with the rights of employers and non-striking workers to freedom of movement and protection of property. Indeed, just days before issuing his directive, he wrote a memo in regard to the tumultuous strike at the Humberstone Shoe Company in Welland, Ontario, where men and women blocked access to the plant in a fight for their jobs and union recognition. These people must definitely understand right now that lawlessness positively will not be tolerated. Any conduct other than or in excess of lawful picketing will be suppressed and prosecuted with the utmost vigour by all the forces and resources of the Province at all costs and under all circumstances. The present Provincial Police Force now on the ground will be doubled or quadrupled or extended to any number that may be necessary to maintain law and order.41 As well, the Ontario government distinguished itself as the only province, apart from Prince Edward Island, that was unwilling to enact any version of the TLC’s draft FTUAA. Hepburn’s electoral victory in October 1937, combined with the poor performance of the CCF, diminished what little political strength organized labour enjoyed in Ontario. In 1939 David Croll, Hepburn’s former Minister of Labour, introduced the TLC’s FTUAA in the Legislative Assembly, where he gained the support of a small group of members, including Arthur Roebuck. Hepburn declared his support for the principle that workers should be free to join a ‘lawful’ union, but reiterated his opposition to the CIO and renewed his pledge that sit-down strikes would be met with the full force of the law. Norman Hipel, the Minister of Labour, indicated that the government would require amendments for the bill to pass. Those amendments would have stripped the

212

LABOUR BEFOR E THE LAW

bill of its penalty clause and inserted protection for company unions. The TLC informed the government that no law would be better than the amended one it was prepared to enact; consequently, it was not reported out of committee.42 The major centre of state support for collective bargaining in Ontario was the Department of Labour. Its capacity to provide conciliation services was expanded in 1937 and its officials sought to avoid or end conflict through mediated compromises, even while legal coercion was being applied through the courts or by the police. But its strength was also its weakness. The department tried to end conflicts between employers and unions based on the existing balance of power between them and ‘without interference with the rights of either’.43 Since union recognition and closed shops often constituted the chief obstacle to a settlement, officials encouraged employers to give, and unions to accept, verbal promises of no discrimination against union members as a compromise. This fell short of an enforceable right to freedom of association, let alone union recognition or closed shops. In Ontario, these rights had to be won through organizational strength, without legislative, political, or institutional support, and in an environment in which employers could usually expect the infrastructure of coercion to protect their rights. Quebec’s response to renewed labour militancy and the threat of CIO expansion was shaped by its industrial structure and history of union organization and by the ideological commitments of Maurice Duplessis and the newly elected Union Nationale government. Quebec did not attract many of the new mass-production industries. Thus, aside from the garment industry, it was not a primary site of CIO organizing. Moreover, the presence of Catholic unions committed to a version of social corporatism not so different from that espoused by Duplessis meant there was some willingness to institutionalize collective bargaining, provided it was with a particular kind of responsible union. Labour issues were not a major focus of the first legislative session of the Duplessis government in the fall of 1936, although it passed a number of minor amendments to existing labour laws. Anti-communism, however, was reaching new heights in Quebec. By the next session in the winter of 1937, the spectres of CIO expansion into Canada and growing labour unrest were haunting Duplessis. One of the government’s first measures was the infamous ‘Padlock Law’, which made it illegal to publish or distribute literature tending to propagate communism or Bolshevism and allowed the Attorney General to have such materials seized and to order the closing of any house or hall used for propagating communism. The law gave

C ANADA’ S NEW DEALS FOR L A B O U R

213

authorities great leeway and was used to seize trade union records and raid the homes of CIO organizers in Montreal.44 That same session, the government enacted its revisions to the collective agreement extension legislation and the Fair Wage Act. Despite Duplessis’s anti-CIO crusade, both statutes provided some of the protection for workers’ freedom of association that the TLC had been seeking. Each made it an offence to prevent, directly or indirectly, an employee from becoming a member of an association, punishable by a fine of $25–$50. The government, however, would not let anybody wield this ‘mighty’ club against an offending employer. The right to prosecute was limited to the minister, joint committees supervising decrees, or persons who obtained the written permission of the Attorney General.45 The international unions sought to strengthen these provisions in the following session, but by then the government’s legislative agenda had shifted; it aimed to restrict, not protect, trade union activity. One statute made it easier to sue an association that lacked legal personality, but did not make it easier for unincorporated associations to bring actions on their own behalf. The law targeted international unions since they did not register under the Professional Syndicates Act. The other important changes were the insertion of ‘freedom of labour’ provisions into the collective agreement extension and fairwage laws. Essentially, this was a right-to-work law that made compulsory union membership provisions unlawful and unenforceable. As well, the power of cabinet to amend or revoke a decree was expanded and the decrees were not to apply to the government or to work done on contract for the government. Both international and Catholic unions were incensed by these measures. Indeed, Alfred Carpentier, president of the CTCC, publicly accused the government of assaulting the life of the trade union movement in Quebec.46 In short, Duplessis’s corporatist vision favoured institutionalized co-operation, carefully overseen by government officials, to advance the public interest. Collective bargaining with responsible local unions had its place, and was viewed by the government and Department of Labour officials as the primary mechanism for establishing conditions of employment. Unions that did not fit within this narrow mould faced state coercion. Moreover, recalcitrant employers who defied the law and discriminated against unionized employees were never prosecuted for doing so. This combination limited trade union growth in the province.47 The remaining provinces responded in one of three basic ways to the TLC’s demand for some protection of basic trade union freedoms:

214

LABOUR BEFOR E THE LAW

enactment of a variant of the FTUAA in and of itself; enactment of FTUAA protections in conjunction with provincial IDIA legislation; and enactment of compulsory recognition and bargaining provisions in addition to FTUAA protections. Saskatchewan followed the first path, despite the fact that it was largely unaffected by the 1937 strike wave. In the face of the growth of the CCF, the Liberal government feared that inaction would be interpreted ‘as a further concession to the capitalist class’ and cost it vital labour support. In 1937 it passed industrial standards legislation and in 1938, during the last legislative session before the next election, it enacted The Freedom of Trade Union Association Act, modelled on the TLC’s draft bill.48 The second path was followed in Manitoba and New Brunswick, albeit under very different circumstances. Trade union organization in Manitoba in the mid-1930s was restricted to a few sectors where craft organization survived by assuming a defensive posture. Outside of the garment and fur industries, little new industrial organizing was taking place and the resource sector, which was primarily agricultural, was unaffected by unionization. The province’s politics were dominated by John Bracken, a man of conservative views who successfully kept his United Farmers Party in minority government through a cautious, pragmatic style. In 1937, the legislature passed a provincial version of the IDIA that was to apply to those industries not already covered by the federal scheme. Tucked away at the back, in the section entitled ‘Miscellaneous’, were three provisions incorporating a barebones version of the TLC’s FTUAA, making it an offence to use intimidation or threats to interfere with employee or employer freedom of association. Violators could be prosecuted and fined between $10 and $100. A bill containing a full version of the TLC’s freedom of trade union association proposals and another providing for Quebec-style collective bargaining agreement extension failed to pass, and subsequent union demands for compulsory bargaining and anti-injunction legislation got no legislative response.49 New Brunswick’s resource workers were heavily involved in the 1937 wave of labour unrest. Forestry workers in the Miramichi joined the newly established, indigenous New Brunswick Farmer-Labour Union (NBFLU) and coal miners in Minto fought to have their new UMWA local recognized. A delegation of the NBFLU lobbied for collective bargaining legislation in March 1937 but failed to obtain a commitment from the government of A. Allison Dysart. In the meantime, negotiations between the forestry workers and the sawmill owners in northern New Brunswick faltered. Since the fair-wage officer was

C ANADA’ S NEW DEALS FOR L A B O U R

215

unable to broker a settlement, the government appointed a Fair Wage Board on 4 August 1937, but before the Board could meet a group of disgruntled employees at one sawmill walked off the job. J.B. McNair, the Attorney General and acting Minister of Labour, advised the men to return to work at once, warning that the Fair Wage Board had no jurisdiction to regulate wages and hours for unemployed, idle, or striking workers. Facing an unsympathetic minister, a disabled Board, and rising worker militancy, the frustrated NBFLU leadership called a general strike in the Miramichi region. Parades and marches brought out 1,500 mill workers and longshoremen from 14 firms. RCMP reinforcements were brought in although the strike was peaceful. The NBFLU sought and was refused assistance from the federal government on the ground that it lacked jurisdiction. One week later, 300 sawmill workers and longshoremen represented by the NBFLU in Campbellton also struck. Again, the Fair Wage Board was disabled once the strike was in progress. RCMP were sent to reinforce local police and Havelock Sanson, one of the NBFLU’s leaders, was arrested and charged with creating a public nuisance after he roped off the entrance gate to one of the mills. Eventually, both strikes were resolved by the intervention of local citizens’ committees formed to mediate the disputes. This allowed indirect negotiation to take place between the union and the employers, leaving the issue of recognition unresolved. Clearly, the Fair Wage Board, the government’s principal administrative apparatus for resolving labour disputes, had proven to be totally ineffective, if only because the government took a narrow view of its powers in the context of a strike.50 The pattern of government hostility towards industrial unions and Board impotence was repeated in the Minto coal miners’ strike later that autumn. A UMWA local was chartered in February 1937 and gained considerable support. When the mine operators refused to meet with the union and the government refused to intervene, the union called a general strike against all the Minto coal operators in October 1937. Incomplete organization and ethnic divisions within the workforce, however, weakened the union local. Miners of British descent had been hired by one company and they preferred to form a separate union that was recognized by their employer. Mass picketing that included the families of the striking coal miners failed to shut down three of the large operators and the local RCMP contingent was beefed up from two to 33 to keep peace. Several weeks into the strike the government offered to submit the miners’ grievances to the Fair Wage Board if they returned to work, but the miners refused since this would not resolve the recognition issue. Instead,

216

LABOUR BEFOR E THE LAW

they appealed to Ottawa to appoint a conciliation board in the hope it might make a favourable recommendation on this issue. The union’s behaviour infuriated McNair, who declared that ‘the real issue [is] whether the affairs of this Province are to be governed by our constituted authorities or by the Committee for Industrial Organization.’ This response emboldened the employers, who evicted some 400 striking families from their company-owned houses.51 With funds and credit running out, the union desperately sought to settle. It used the announcement that a federal conciliation board was being appointed—despite the opposition of McNair and the coal operators—to call for a return to work on 11 December. The operators, though, refused to take back the strikers unless they individually agreed to accept a ruling of the Fair Wage Board. Although some miners returned, a large number were locked out for nearly a month, until mid-January, when the operators finally agreed to take the miners back unconditionally—except for the ringleaders, who were blacklisted. The federal conciliation board hearings proceeded, but the UMWA organizing drive was broken.52 The failure of the government’s labour policies to prevent or contain these conflicts, as well as the fear that working-class electoral support might be lost, prompted the government to consider new legislation. However, there was conflict over the direction it should take. On the one hand, J.B. McNair opposed government support for compulsory union recognition; on the other, Premier Dysart indicated to the New Brunswick Federation of Labour (NBFL) that his government was seriously considering its demand. The resulting bill bore McNair’s imprint more than Dysart’s. On the positive side, part two of the Labour and Industrial Relations Act (LIRA) offered the unions a stripped-down model of the TLC’s draft FTUAA, prohibiting ‘yellowdog’ contracts. On the negative side, the bill did not prohibit other forms of employer interference with trade union organization; it specifically preserved the right of the employer to suspend, lay off, or discharge for proper cause; and it did not impose on employers a duty to bargain or to check off union dues. It also created a particularly regressive version of the IDIA that was to apply to all disputes under provincial jurisdiction. Not only would this limit the future use of federal IDIA machinery in New Brunswick, but it would also prohibit all strikes until after the completion of the conciliation process, including a requirement that workers vote on the recommendations of a board of conciliation. Heavy penalties were imposed on persons convicted of violating LIRA’s provisions, which included a prohibition on ‘aiding in any manner’ an illegal strike. Needless to say, the NBFL

C ANADA’ S NEW DEALS FOR L A B O U R

217

and the NBFLU opposed the bill, but they only succeeded in obtaining two amendments prior to its passage. The most important change made it an offence for employers or unions to use intimidation to prevent a person from joining or to compel a person to join a union.53 After the law was enacted, Gregory McEacheron, a prominent NBFLU leader, asserted that J.B. McNair ‘must have had all the big business men in the province help him draw it up, for . . . it is certainly a one-sided affair.’ The NBFL also found the Act objectionable and later reported it was ineffective in providing for collective bargaining in the face of employer resistance. Despite extensive lobbying, the only amendment obtained by labour was one specifying that, contrary to the view pressed by employers and accepted by the Attorney General, the Act did not prohibit closed-shop agreements.54 The third path was followed in Nova Scotia, British Columbia, and Alberta. It went furthest towards transforming the regime of industrial voluntarism by converting the privilege to join a trade union into a legally enforceable right and by compelling employers to recognize and bargain with trade unions that enjoyed majority support. Canadian labour support for US Wagner Act legislation was far from unanimous because of the concern of AFL affiliates that the scheme favoured industrial unions, but a combination of local demands and political and economic circumstances opened up this avenue of reform. Nova Scotia was the first to move in this direction, largely because of the way unionization had been institutionalized in the coal industry. The long history of struggle in the Nova Scotia coal mines had convinced most coal operators that they could not expect to mine in a union-free environment. Because of this, they were interested in preserving relationships with established unions, especially when the alternative was a more radical one. Moreover, the provincial government had an unusually strong interest in stabilizing industrial relations because of the importance of coal-mining to the provincial economy and because of a desire to avoid a repetition of the protracted strikes of the previous decade. This conjuncture created the political space for state support and control over collective bargaining. In 1927 the government created a statutory basis for the dues check-off in the coal-mining industry, requiring the employer to deduct union dues when requested by a miner. The dues check-off was further refined in 1934 against the backdrop of the conflict between the UMWA and the Communist-influenced AMW. The government amended the Coal Mines Regulation Act to make the employer liable to check off union dues each year for only the union with the greatest support among its employees. Although this was

218

LABOUR BEFOR E THE LAW

not certification for the purpose of compulsory recognition, the charge set a precedent for state involvement in determining union support among groups of employees and it institutionalized financial security for dominant unions.55 These interventions constituted a foundation of sorts upon which a more legalized regime of industrial relations could be built when a new wave of labour militancy broke over the shores of Nova Scotia in 1937. The most important struggle was in the Sydney steel mills, whose owners spared no effort to keep an open shop. An attempt to establish an independent trade union among Sydney steelworkers in the early 1930s was met with carrot-and-stick tactics. Management gave in to demands for a shorter workweek and a wage increase but fired union organizers. In 1936 the independent union activists at the Sydney steel mill became Lodge 1064 of the SWOC and, with strong support from the mineworkers, began organizing the steelworkers. The drive went remarkably well and within months over 80 per cent of the nearly 3,000 steelworkers became union members. Rather than seek recognition from the employer, the union pursued a political strategy. George MacEachern and other local activists, with the assistance of a sympathetic lawyer, A.D. Gunn, drafted a bill based on the Wagner Act and the Coal Mine Regulation Act. They presented it to Premier Angus L. Macdonald, who was convinced that state-compelled recognition was preferable to a bitter recognition strike. The union lobbied vigorously, and with a provincial election looming on the horizon all parties backed the principle. Gord Harrington, the former Premier, leader of the opposition, and member from Sydney, introduced a bill modelled on the TLC’s draft FTUAA. Premier Macdonald responded to this awkward situation by supporting the bill and proposing amendments to strengthen it. The result was a stripped-down version of the Wagner Act that, in addition to the provisions of the Harrington bill, required employers to recognize and bargain with unions that won majority support. These unions would also be entitled to a dues check-off modelled on the one operating in the coal industry. The bill did not, however, exclude company unions and it expressly preserved management’s right to suspend, transfer, or discharge ‘for proper and sufficient cause’. The Trade Union Act was passed on 17 April 1937, the last day of the legislative session.56 Lodge 1064 moved quickly to take advantage of the new law. It won the first plebiscite conducted under the law by an overwhelming majority of 2,984 to 113. Dosco initially refused to accept the result but two brief strikes in June convinced it to implement the check-off and negotiate with the union. Although no collective agreement was

C ANADA’ S NEW DEALS FOR L A B O U R

219

signed for a number of years and no major breakthroughs were made in collective bargaining, numerous departmental job actions led to the settlement of various grievances. Clearly, a statutory collective bargaining scheme was not a substitute for worker militancy, but it provided mobilized workers with some additional leverage that allowed them to avoid a large and potentially lengthy strike that the union might not have won. Moreover, the income from the Sydney dues check-off proved to be an important financial resource for the SWOC’s organizing efforts in Canada and the United States.57 Alberta’s decision to go tentatively down the path of regime reform was motivated by a very different combination of events from that in Nova Scotia. Social Credit was a populist movement with a rather ill-defined outlook when it swept the August 1935 election. It embraced an amalgam of beliefs including the economic theories of an Englishman, Major C.H. Douglas, Christian fundamentalism, individualism, and the desirability of expert state interventions to steer the economy. At the time of their election, Social Credit enjoyed broad farmer and labour support, and some predicted that its populism would take a left turn. Certainly in its early years, the government’s labour legislation lent credence to this hope: more than any other prairie government, it regulated conditions of employment and created a legislative infrastructure supporting the institutionalization of responsible trade unions and collective bargaining.58 Immediately after their election, the Socreds’ labour policy centred on the administration and extension of the Industrial Standards Act and minimum standards. In 1937, at the request of the Alberta Federation of Labour, the government enacted the Freedom of Trade Union Association Act (FTUAA), which was virtually identical to the TLC’s draft bill. Yet, despite its apparent willingness to meet labour demands, the government was less accommodating when faced with actual labour conflict. For example, when sugar-beet workers, affiliated with the WUL-affiliated Beet Workers’ International Union (BWIU), struck in the spring of 1936, the Department of Labour recruited strikebreakers who were transported to the fields under RCMP protection. The government also refused to appoint a conciliation board, taking the view that beet growers were not employers under the legislation because they did not individually employ 10 or more persons and because they were not persons acting together with interests in common. Under these adverse conditions, the BWIU lost the strike.59 The 1937 wave of labour unrest touched Alberta lightly. One exception was in the meat-packing industry where previous organizing efforts had failed. Late in 1936, the Canadian Victuallers and

220

LABOUR BEFOR E THE LAW

Caterers’ Union, an ACCL affiliate, enrolled a substantial number of meat packers angered by unhealthy conditions and unfair treatment. The union made an application for conciliation in a dispute with United Packing in Calgary and, although a board was appointed, the employer delayed nominating a representative and fired the workers who signed the application. In response, workers occupied the factory on 4 February 1937. Within days the employer swore informations against the striking workers and 48 were summoned to court. Only a few appeared and the following day police arrested the remaining sitdown strikers. A week later the strike was called off pending the results of the conciliation board’s investigation. Early in March the board issued its report, calling for improved working conditions, a wage increase, recognition of the right of workers to associate, and reinstatement of the discharged workers with some compensation. Although these recommendations were not accepted by the employer, the Calgary strike did not resume.60 Instead, the focus shifted to Edmonton. There, about 300 workers at the Swift plant, also members of the ACCL meat packers’ union, sat down on 3 April to support their demand for union recognition. They left the plant the next day and commenced picketing outside. Several days later, portions of the workforces at Gainers and Burns also struck, as did a group of female laundry workers. Picket-line violence occurred at the Swift plant, and wives of some of the striking workers were arrested, convicted, and sentenced to six weeks in jail for assaulting non-striking women workers. The employers at all the struck locations held firm and all the strikes were lost. Although the FTUAA had been declared in force on 14 April, most striking workers who reapplied for their jobs were rehired and no legal action was taken to enforce the law. These experiences convinced trade union officials that more legal compulsion was needed to establish collective bargaining. At its January 1938 convention the Alberta Federation of Labour called on the government to enact legislation compelling employers to recognize and negotiate with a union representing its employees. Again, the government proved surprisingly responsive. That session it passed the Industrial Conciliation and Arbitration Act (ICAA), replacing the FTUAA and the Labour Disputes Act. The most important change made by the ICAA was that it required an employer to bargain with a representative chosen by a majority vote of the affected employees. The penalty for refusing to bargain was a $500 fine. The ‘certification’ process was relatively informal and could be controlled by the union in the sense that the union had to obtain

C ANADA’ S NEW DEALS FOR L A B O U R

221

majority support among the group of workers it was seeking to represent. A meeting to elect a representative had to be held, but the majority of those present could prevent from attending persons they did not want at the meeting. To invoke the duty-to-bargain requirement, the chair of the meeting had to file a statutory declaration with the minister setting out the name of the employer, the number of employees, the number attending the meeting at which the vote was conducted, and the results of the vote. There were, however, some concessions to employers. Although the FTUAA prohibitions on employer interference remained in force, company unions were not excluded from claiming the benefit of the ICAA and directors and managers were no longer deemed to have violated the law unless they could prove that they had no knowledge of the offending behaviour or had endeavoured to prevent it. The conciliation requirements of the Labour Disputes Act were carried over into the ICAA, including the prohibition on strikes or lockouts prior to the completion of the conciliation process. The ICAA also specifically excluded workers employed in agriculture and domestic service. The legislation passed with little public discussion or controversy but does not appear to have been invoked before the outbreak of World War II, at least in part because there was little new organizing activity.61 In British Columbia, the enactment of compulsory recognition legislation was very much a government initiative aimed at containing the anticipated growth of industrial unionism and industrial conflict rather than a response to a demand from organized labour, which only supported the enactment of the TLC’s draft FTUAA. Indeed, compulsory recognition was first recommended by Justice J.C. McIntosh in a report he wrote as a commissioner appointed to help settle a strike by meat packers at Burns Meats in Vancouver. The company had discharged 19 employees for union activity, including all members of the local’s executive. Efforts by federal and provincial officials to mediate the dispute failed because of the employer’s strict ‘no-recognition’ policy and the union initiated a consumer boycott and picketing of retail outlets where Burns products were sold. An injunction prohibiting the consumer picketing followed. At this point Justice McIntosh was appointed. In his subsequent report he criticized the existing industrial disputes legislation as ‘sadly inadequate’ and recommended that workers be given the right to join any organization of their choosing and that an employer be required to recognize a committee elected by its employees.62 By then, however, the legislature had been dissolved and an election called. The Liberals were returned to power in June 1937 and

222

LABOUR BEFOR E THE LAW

Premier Pattullo reappointed George Pearson as Minister of Labour. Pearson was keenly aware of the success of the CIO-affiliated International Woodworkers of America (IWA) in the Pacific Northwest and urged Pattullo to enact legislation to facilitate industrial peace through collective bargaining between employers and responsible trade unions. At the same time, the TLC was pursuing its campaign for provincial freedom-of-association legislation and Harold Winch, a CCF member of the BC legislative assembly, introduced a version of the TLC’s model bill early in the session. The government responded by quickly passing Pearson’s Industrial Conciliation and Arbitration Act (ICAA). The ICAA provided an IDIA-type scheme for all disputes within provincial jurisdiction. This extended the compulsory conciliation and non-binding arbitration process to provincially regulated industries, along with the prohibition on strikes and lockouts until 14 days after its completion. The ICAA also included most of the TLC’s freedom-of-association provisions, although, in response to employer lobbying, it did not prohibit company unions. Finally, section 5 required employers to bargain with representatives elected by a majority of the affected employees. Labour leaders were incensed. They opposed compulsory arbitration and feared that the wording of section 5 would be used to deny trade unions recognition and the right to act as bargaining agents on behalf of workers.63 The first important test of the ICAA came at Blubber Bay on Texada Island, where lime-plant workers organized by the Lumber and Sawmill Workers’ Union—now a section of the CIO-affiliated IWA— sought union recognition and a closed-shop agreement with Pacific Lime. The ethnically mixed workforce showed remarkable solidarity in the face of repeated employer attempts to fan racial tensions. The first round of conflict occurred in the summer of 1937 and ended when Pacific Lime agreed to meet with an elected employee committee and not to discriminate against union members. Later that year, after the enactment of the ICAA, a dispute arose over the implementation of that agreement. According to the union, the employer refused to meet with an employee committee that included nonemployee trade union officials and failed to reinstate discharged union members. In January 1938, at the union’s request, the Minister of Labour appointed a conciliation commissioner. Under his supervision a vote confirmed that the men wished to be represented by the union. Still no settlement was reached and the workers struck on 7 March. Department of Labour officials immediately intervened, advising the strikers that under the new ICAA their strike was illegal,

C ANADA’ S NEW DEALS FOR L A B O U R

223

and threatened to prosecute. The strike was called off and the conciliation process started again. When workers protested that Pacific Lime was trying to provoke a further strike by hiring out-of-town Chinese workers when local whites were available, they were again warned they would be prosecuted if they walked off the job. Yet, when the union requested that the employer be prosecuted for its refusal to reinstate workers who allegedly were fired for their union activities, the government refused to proceed. Following the failure of conciliation, the dispute was referred to an arbitration board chaired by Justice McIntosh. After a hearing, the board issued an award confirming the right of employees to organize, but rejecting the union’s demands for recognition as exclusive bargaining agent and a closed shop. A large majority of the employees voted to reject the award, finally placing them in a legal strike position. On 2 June, the walkout commenced. It soon turned violent when the employer tried to operate with scabs brought in by boat. Skirmishes resulted in the arrest of 12 strikers and a magistrate sympathetic to the employer convicted 10 on charges including assault, intimidation, and obstructing police. A particularly bloody incident occurred on the evening of 17 September 1938 when, according to the strikers, provincial police and scabs attacked workers picketing a dock. Numerous picketers, scabs, and police were injured and 23 striking workers were arrested and charged with unlawful assembly. One of the strikers, Robert Gardiner, was taken from his cell and severely assaulted by Constable Williamson. The union subsequently laid charges against 18 scabs and six police officers. As well, Williamson was charged for his actions. Eventually, 15 of the strikers were tried and 12 were convicted, including Robert Gardiner. They received sentences ranging from three to six months. All of the men charged by the union were acquitted, leading the union to claim judicial bias. Constable Williamson was tried separately for his assault on Gardiner and was convicted, sentenced to six months’ hard labour, and kicked off the police force. Shortly after being released from prison, Robert Gardiner died of pneumonia, thought to be the consequence of the beating he received and the harsh conditions of his imprisonment. The strike dragged on into 1939 but by then the union was broken.64 The strike at Blubber Bay was emblematic of the tension within the emerging regime. The principle that workers had a right to join a union for the purpose of collective bargaining was gaining widespread acceptance. In nearly every province except Ontario and PEI, legislation was enacted making it an offence for employers to

224

LABOUR BEFOR E THE LAW

interfere with workers’ freedom of association by blacklisting or firing union supporters, or to use other forms of intimidation. Moreover, in some provinces employers were under a legal duty to bargain collectively with elected employee representatives. Nonetheless, employers still had ready access to the old coercion to protect their core property and contract rights. Employers determined to resist unionization were unlikely to face significant compulsion, even if they violated new freedom-of-association and collective bargaining laws, but workers who violated property and contract rights could expect to face the force of law.65 The ineffectiveness of the BC scheme was immediately apparent. Angus MacInnis, the CCF member of Parliament from Vancouver East, noted as early as March 1938 that ‘the Industrial Conciliation and Arbitration Act . . . was supposed to be a universal cure-all, but it appears to be more spectacular than useful from the working man’s point of view.’ An amendment to the ICAA late in 1938 made it clear that trade unions with majority support could act as bargaining agents, but it did little to shift the balance of power or legal compulsion. Indeed, the 1938 amendment aimed to prevent new CIO unions from using the law by specifying that union recognition could only be given where a majority of employees were organized prior to 7 December 1938. For the others, only elected representatives, not organizations, could become recognized bargaining agents. This antiCIO bias was further manifested by the fact that the only recorded prosecution under the ICAA during this period was against members of the CIO-affiliated Mine-Mill for conducting a strike against Pioneer Mine prior to the completion of the conciliation process. Six union officers were fined. In that same dispute, miners were evicted from company housing and a brief occupation of the mine terminated after discussion with the provincial police. Neither in that instance nor in any other, in BC or elsewhere in Canada, was an employer prosecuted for refusing to bargain or for discriminating against unionized workers. Adam Bell, deputy minister of labour in BC, explained that in one case in which workers alleged a refusal to bargain they could not demonstrate that their union represented a majority of workers. Moreover, he indicated that after the Criminal Code was amended to make discrimination against trade union members a crime, the province’s legal department was of the view that the provincial prohibition was ultra vires.66 Efforts to curb the use of direct coercion against striking workers were equally futile. C.G. MacNeil, member of Parliament for Vancouver North, introduced a private member’s bill in the spring of

C ANADA’ S NEW DEALS FOR L A B O U R

225

1939 aimed at restricting the law on unlawful assembly and watching and besetting to make it clear that peaceful picketing for the purpose of communicating information or peacefully persuading a person not to work could not give rise to criminal liability. He recited the events at Blubber Bay in support of the need for this clarification. Ernest Lapointe, the Minister of Justice, was unmoved. His only response was to assert that the law of picketing in England was stricter than Canada’s.67

In Lieu of a National Labour Regime In 1937 and again in 1938, CCF leader J.S. Woodsworth introduced a bill to amend the Criminal Code by making it a crime for an employer to interfere with a worker’s right to join a trade union by firing, refusing to hire, or intimidation. In 1937 discussion of the bill was cut short by the Minister of Justice, Ernest Lapointe. By 1938 the government was less inclined to be so dismissive and let the question be debated by the House. No speaker objected to the principle that workers should be protected. Indeed, Lapointe was quick to assert: ‘We are all in favour of unions, I am strongly in favour, we all are, of recognizing the right of labour people to organize into unions.’ When the Minister of Labour, Norman Rogers, had the opportunity to join the debate, he, too, proclaimed: ‘[T]he right of workers to form or to join trade unions has the full support of this government.’ Indeed, Rogers traced the history of that support back to the 1918 wartime Order-in-Council PC 1743, but as Rogers recognized, this had no legal effect; rather, it simply appealed to employers and workers to observe its principles. Twenty years later, the Dominion government still refused to protect these workers’ rights through the criminal law because, in its view, this was a colourable attempt to deal with freedom of association, a civil right in the exclusive jurisdiction of the provinces. It could not accept the analogy drawn by Woodsworth between his bill and criminal laws protecting property, also a matter of provincial jurisdiction. The path of British-style ‘voluntarism’ in the development of collective bargaining was to be preferred to Wagner Act compulsion.68 The following year Woodsworth reintroduced the measure and this time the government incorporated it as part of its package of Criminal Code amendments. The most likely explanation for this turnaround was that the TLC and other labour groups had become convinced that provincial freedom-of-association laws were not strong enough and, with general elections coming up, were able to wrench this concession from cabinet as a condition of its support. It did not, however,

226

LABOUR BEFOR E THE LAW

gain greater protection for picketing. The result was section 502A, which made it a crime to refuse to employ a person for the ‘sole’ reason that the person was a ‘member of a lawful trade union . . . formed for the purpose of advancing in a lawful manner their interests’. Lapointe explained that the government could legislate because almost all provinces had enacted laws making it unlawful for an employer to dismiss an employee for being a member of a union. This made it easier for the government to characterize violation of workers’ freedom of association as a right worthy of protection by the criminal law. At the very least, the government had little to lose and something to gain by complying with this TLC-backed measure, particularly after it specified that irresponsible trade unionists who resorted to illegal means would be deprived of its protection.69 Realists recognized that this legislation, like its provincial counterparts, would not, by itself, bring about a new era. Peter Bercovitch, a Liberal member and a lawyer who had represented labour unions in Quebec, saw its weaknesses right away. ‘It is my opinion that to a very great extent, apart from its moral effect, the section is illusory. I doubt very much whether it would be possible at the best of times to obtain a conviction under the section as it reads.’70

Conclusion It was not just limitations of language that stood in the way of a regime change. The economic upturn of 1937 quickly collapsed, and with a return to Depression conditions labour militancy declined sharply. There were half as many strikes in 1938 as in 1937 and even fewer in 1939. Moreover, the labour movement was further weakened by internal strife following the AFL-ordered suspension and subsequent expulsion of the CIO affiliates from the TLC in 1939. Trade unions were also split on the merits of the Wagner Act model. The TLC, following the AFL, resisted the creation of an administrative apparatus like a National Labor Relations Board vested with the power to determine bargaining-unit structure and otherwise to enforce the legislation. Yet, as many recognized, a system of criminal sanctions would never be adequate to the task of implementing a new regime of industrial legality. Although a growing corps of labour relations experts were beginning to develop a group identity and to promote common ideas about the desirability of collective bargaining, they lacked significant remedial authority. At the very least, the brief experience with these laws in Nova Scotia, Alberta, and British

C ANADA’ S NEW DEALS FOR L A B O U R

227

Columbia made it clear that weak versions of the Wagner Act model did not provide a panacea to organized labour’s woes.71 The need for a regime change was driven and blocked by the level of employer opposition to trade union recognition and collective bargaining, although some employers were prepared to countenance collective bargaining provided it was with a responsible trade union. The CMA, for example, demanded incorporation of trade unions to make them legally answerable for their actions. Other employers, most notably in the construction and garment industries and the railways, found that collective bargaining with responsible trade unions under the IDIA or ISA schemes stabilized their industrial relations. Still other employers were moving towards ‘the modern view’ actively promoted by the new industrial relations experts inside and outside of government—that collective bargaining was a means of bringing trade union leaders ‘in contact with the problems of industry, making them in effect partners, contributing to and sharing in the prosperity of business.’ Once this ‘spirit of co-operation’ was achieved, trade union ‘assistance in keeping a plant efficiently manned would be sought.’ Most employers, though, still saw unions as a threat, not as partners, despite the efforts of industrial pluralists keen to promote industrial self-government overseen by sympathetic, expert administrators.72 In fact, most trade union leaders, including those in CIO unions, embraced responsible unionism and would not have disagreed with the modern view. Militancy was a means of bringing recalcitrant employers to the table, not of challenging capitalist relations of production. In the words of one sympathetic observer: In industries where the employer has recognized the right of employees to organize and bargain collectively, there is no problem of union responsibility. . . . If employers would take the first step—if they would . . . no longer contest their employees’ right of self-organization—the problem of union responsibility would largely be solved.73 In 1939, most employers would not take the first step willingly, while most unions could not muster the militancy required to make them and neither could the ‘moral effect’ of converting a worker’s privilege to join a union into a legal right.

9

The Exhaustion of Industrial Voluntarism, 1939–1942

The war precipitated a profound change in the level, quality, and quantity of state activity from that which prevailed during the 1920s and 1930s. In many ways, the situation in the autumn of 1939 resembled the beginning of World War I; the Canadian economy had not fully emerged from the decade-long Depression, unemployment was high, and productive capacity was underutilized. The labour movement was as weak as it had been in 1914 and even more divided. Bora Laskin, who would become one of the most esteemed practitioners and proponents of industrial pluralism, claimed: it is hardly open to dispute that we entered this war with a system of labour relations that showed little, if any advance, over that in vogue in 1914. . . . There were no effective laws guaranteeing freedom of association or compelling collective bargaining. The open shop was a flourishing principle of labour relations policy, and discrimination on account of union activity through discharge or demotion was, prior to 1939 at any rate, neither unlawful nor unusual. At the same time existing legislation and court decisions relative to strikes and picketing made it fairly clear that any union activity that was likely to be effective, would be declared illegal, and would subject the participants to both criminal and civil penalties.1 But, unlike the Great War, World War II precipitated lasting changes on the labour relations front. Manufacturing was the engine of war production and industrial workers its fuel. Mass-production industries in southern Ontario, shipbuilding on both coasts and the Great Lakes, aircraft manufacturing in Montreal, and steel production 228

THE EXHAUSTI ON OF I NDUSTRI AL VOLUNTA R I S M

229

in Ontario and Nova Scotia rapidly expanded, attracting thousands of male workers from agricultural production. They swelled the ranks of industrial unions; by 1942 the membership of unions affiliated with the recently established Canadian Congress of Labour, which had absorbed the CIO, reached 200,089, closely rivalling the TLC, many of whose affiliates had shucked their craft bias and taken an industrial turn, which represented 230,390 workers.2 King and his ministers, along with their senior advisers and bureaucrats, sought to avoid the massive labour unrest that occurred at the end of World War I and they believed that the trick was to introduce many of the initiatives implemented in the later part of that conflict at the outset of the new hostilities. During the first phase of its wartime labour policy, which lasted from the fall of 1939 to the spring of 1941, the federal government resorted to World War I precedents to deal with any murmur of labour unrest. Conciliation and exhortation, plus some finely calibrated coercion, were the solution to the labour problem. With full employment on the horizon in late 1940, the government introduced its first tentative measure to control wages, which was designed to maintain the pre-war wage structure that emphasized skill and regional differentials. Workers pressed for wage increases and greater control on the shop floor. Rank-and-file militancy took the form of short, disruptive strikes that union leaders were hard-pressed to contain. The government’s response was to resort to coercion, and this marked the second phase of the government’s labour policy. By the end of 1942, however, the government could no longer contain the burgeoning contradictions of its wartime labour policies. Unrest was expressed on a decidedly class basis as workers’ militancy, measured by strike activity, began to peak. For a short time the deep schisms in the labour movement were superseded by a common opposition to the federal government’s wartime labour policies. The CCF benefited profoundly from workers’ dissatisfaction with the government and posed a direct challenge to continued Liberal rule. By 1943 the federal government was grudgingly forced to consider compelling employers to recognize independent trade unions.

Wartime Precedents: Repression, Conciliation, and Exhortation, September 1939 to June 1941 Just before war was declared the federal government invoked its national emergency powers under the War Measures Act, which provided cabinet with extraordinary powers that were unprecedented in Britain or the United States. Not only did this legislation enable the

230

LABOUR BEFOR E THE LAW

federal government to avoid the increasingly vociferous squabbles over jurisdiction with populist premiers who advocated greater provincial powers, it also permitted King’s government to bypass normal channels of parliamentary accountability. In one fell swoop, power was concentrated and centralized within the federal cabinet for the duration of the war and its immediate aftermath. Driving the war engine was C.D. Howe, the suzerain of the powerful Department of Munitions and Supply, who surrounded himself with ‘dollar a year men’—industrialists recruited from private industry who continued to be paid by their employers and who were notorious for their opposition to organized labour. The cabinet’s primary goals of continuous and maximum production and fighting inflation combined with the experiences and predilections of King’s senior ministers to ensure that organized labour was virtually frozen out of formal representation within the key cabinet committees, the crucial bureaucratic committees, and the agencies that administered the war industries. For the first year and a half of the war, the federal government looked to World War I for the source of its labour policy, which was composed of three strands: the use of repression under the Defence of Canada Regulations against ‘agitators’ who threatened the war effort; the extension of the conciliation mechanisms provided under the Industrial Disputes Investigation Act to all essential war industries; and a statement of principles that were to govern labour relations during the war. That King’s government simply followed precedents is not surprising given that both wartime governments shared the same diagnosis of the cause of the labour problem—subversive militants. But, unlike the earlier conflict, when these initiatives were introduced towards the war’s end in response to growing labour militancy, King’s government sought to pre-empt labour unrest by invoking these policies at the war’s outset. The trouble with this solution, however, was that it was based on a faulty diagnosis of the problem. It was the unequal burden of sacrifice shouldered by working people that fuelled rank-and-file militancy, not militant agitators. The most glaring example of this inequality was the government’s increasing reliance on coercion to enforce its labour policy against workers and unions, on the one hand, and its deference to managerial prerogatives, on the other. Significantly, the Liberal government’s first step was to put in place a coercive apparatus to deal with internal security. On 3 September 1939 the cabinet issued the 64 Defence of Canada Regulations under the War Measures Act. They ‘represented the most serious restrictions upon the civil liberties of Canadians since Confederation’, providing

THE EXHAUSTI ON OF I NDUSTRI AL VOLUNTA R I S M

231

for full powers of censorship over the press, preventive detention of anyone who might potentially act in a manner ‘prejudicial to the public safety or the safety of the state’, and the prohibition of statements that ‘would or might be prejudicial to the safety of the state or the efficient prosecution of the war.’ The measures regarding preventive detention were particularly draconian, as they set aside traditional protections such as habeas corpus, the right to legal counsel, and normal trial procedures. Later, a provision was added outlawing certain organizations; all told, over 30 organizations, including the Communist Party, were banned. This regulation was similar to the reviled s. 98 of the Criminal Code, for the burden of proof was placed on the accused. While on their face the Defence of Canada Regulations did not specifically target trade unionists or union activities, it was clear that many political and legal authorities either could not or did not distinguish trade unionists and their activities from Communistinspired subversion.3 The Ontario government demonstrated great gusto in exercising these repressive powers against industrial unionists. On 6 December 1939, Gordon Conant, the Attorney General of Ontario, ordered the arrest of Charles Millard, the leader of the Steel Workers Organizing Committee in Ontario and a high-ranking member of the CCF, after he made a speech in Timmins condemning the investors’ strike against the federal government’s tax on wartime profits. This, it was alleged, violated Regulation 39, which prohibited the utterance of statements ‘prejudicial to recruiting’. Millard’s arrest provoked a flood of criticism, not only by CIO unions and the Toronto Trades and Labour Council, but also by the editor of Saturday Night, a magazine not known for its support of trade unions. Silbey Barrett, chairman of the Canadian CIO and leader of District 26 of the United Mine Workers, condemned Conant as ‘the most labour-hating government member of the most labour-hating government of Canada’. But it was obvious even to Conant that he had overstepped the bounds of permissible repression and the charge against Millard was dropped in March 1940. This setback, however, did not deter Conant. In November 1940 he ordered the OPP to arrest George Burt, the leader of the UAW in Canada, along with 45 UAW members, for violating a provision of the Defence of Canada Regulations that prohibited ‘loitering’ near a restricted area. Magistrate D.M. Brodie found that the peaceful picketing by Burt and his colleagues on the sidewalk across from the Chrysler plant in Windsor, which had been declared an essential service by Orderin-Council, violated a regulation. On an appeal from that decision, Justice F.D. Hogg of the Ontario High Court affirmed the conviction.

232

LABOUR BEFOR E THE LAW

Bora Laskin queried how the judge ‘could reconcile a ban on peaceful picketing, by invoking a regulation against “loitering” ’, which was implemented, in the judge’s words, ‘ “for the purpose of preventing spying upon and obtaining information of activities carried out in premises” such as the Chrysler plant’. Laskin’s prediction that ‘organized labour is not likely to react favourably to even an implication that legitimate trade union activities are being stigmatized as traitorous or put in the class of “spying” ’ was correct. On 7 February 1941, in response to the CCL’s campaign, the federal government amended the Regulations to permit peaceful picketing.4 The federal government was more precise than its Ontario counterpart in exercising its repressive powers against trade unionists. After the fall of France in June 1940 it stepped up its use of the Defence of Canada Regulations, but it was careful to target unionists it alleged were Communists or Communist sympathizers. Successive federal justice ministers defended the government’s internment policies on the ground that no one was ever interned for labour activities, only for communism. However, the timing of the internments of 12 known labour leaders suggests that the trade unionists’ labour activities, as much as their political affiliations, merited repression. In the majority of cases in which trade unionists were interned allegedly on account of their political affiliation, the event that precipitated the government’s action was either a strike or an organizing campaign. And although it had a range of coercive mechanisms at its disposal, the beauty of using the Regulations was that the government did not have to prove its allegations in an open court.5 The federal government could deploy such repressive tactics with relative impunity. Not only did the CMA egg it on, complaining that Communist agitators and fifth columnists had infiltrated the union movement to foment illegal strikes and sabotage the war effort, but the courts did not impose constraints on the cabinet’s use of its internment powers under the Regulations. When J.L. Cohen brought a habeas corpus application to challenge the internment of Pat Sullivan, a Communist who was the leader of the Canadian Seamen’s Union, a large affiliate of the TLC, Justice J.A. Hope of the Ontario High Court dismissed it, declaring that in circumstances of an all-out war: freedom of executive action in the interests of public safety requires that sympathetic construction be given to statutory authorization of delegated legislation. . . . At this grave moment in our struggle, not only for the democratic way of life but for our very existence, it may appear at times that some measures taken by the

THE EXHAUSTI ON OF I NDUSTRI AL VOLUNTA R I S M

233

Government come near to suspending the very essence of our Constitution as it has been built up over the centuries. However, it may be imperative that our ancient liberties be placed in pawn for victory.6 Moreover, ‘responsible’ leaders of the trade union movement who did not want to be associated with subversive elements did not initially criticize the Regulations. The TLC refused to condemn the government’s internment policy because it would have the effect ‘of creating suspicion of constituted authority’. And while the CCL was prepared to raise an outcry when leaders like Millard and Burt were targeted, it did not object to the government’s use of coercive power to purge some of its affiliates of Communists. At its 1941 convention, M.M. Maclean, a member of the CCL executive who later became the Director of Industrial Relations for the federal Department of Labour, asserted that the time had come ‘for a showdown between honest labour and subversive elements’.7 The use of the Regulations against Communist trade unionists came to an end after Hitler’s invasion of the Soviet Union in June 1942. Although the federal government began to release Communist internees, the Communist Party remained banned throughout the war. Simultaneously, the TLC led a campaign against the use of the Regulations against trade union activity. On 14 April 1942, the government amended Regulation 21 to prohibit its use merely because a person was taking part in, or persuading others to take part in, a strike. This concession went some way towards assuring the labour movement that it would no longer be subject to arbitrary government decrees, although it did not put an end to the use of the Regulations to repress striking workers.8 The repression of Communist unionists was, however, an ancillary element in the government’s labour relations policy, which was composed primarily of conciliation and exhortation. On 5 October 1939, King and members of his cabinet met with the executive of the TLC. At that meeting Tom Moore made it clear that the TLC’s support for the government’s war effort was conditional; it was prepared to endorse a voluntary ban on strikes and lockouts for the duration of the war, but only if the government recognized labour as an equal partner in production activities and implemented measures that would facilitate the peaceful resolution of labour disputes. The TLC called for the extension of the IDIA to all industries, a declaration of policy similar to that made during the latter period of World War I, when the government outlined the principles to govern union recognition and

234

LABOUR BEFOR E THE LAW

collective bargaining, as well as its commitment to maintain established conditions regarding wages and hours and to set minimum conditions of employment. Moreover, the TLC leaders informed the government that they would not tolerate the imposition of a ban on strikes and compulsory arbitration as had been done in 1918.9 The extension of the IDIA proved to be the easiest demand for the federal government to act on. Not only did the CMA support it, but so, too, did the CIO unions in Canada, for they believed that federal conciliation was the ‘only answer’ to Conant’s union-busting tactics and the perennial failure of Ontario’s efforts at conciliation. The sole opposition came from the Ontario government, which believed that the extension of compulsory conciliation would facilitate CIO organizing drives. On 9 November 1939, cabinet issued PC 3495, extending the IDIA to industries engaged in war work and empowering the Minister of Labour to designate industries as war industries.10 By 1941, 85 per cent of all industry fell within the scope of the IDIA and the work of the federal Department of Labour dramatically increased. The federal government’s wartime emergency powers effectively superseded provincial jurisdiction over labour relations for the war’s duration and its immediate aftermath. In 1939, collective bargaining legislation was a tattered patchwork across the country; Ontario did not provide a statutory guarantee of workers’ freedom of association or prohibit employer discrimination against trade unionists. And even where such legislation existed, as in British Columbia, it was apparent that the legislation did not amount to union recognition or require legally binding collective agreements to be signed. Although provincial departments of labour continued to operate and their work increased, they tended to function on a co-operative but subordinate basis with the federal department. While provincial governments maintained some autonomy with respect to labour relations and disputes—for example, they could send in conciliation officers, call in the police and the troops, and act as gatekeepers of the criminal prosecution process—it was not until 1943 that they began to enact legislation directly challenging the thrust of federal labour relations policy.11 The adoption by the federal government of a simple statement of principles endorsing collective bargaining proved to be more controversial than the extension of compulsory conciliation. To obtain the labour movement’s support for his government’s campaign to speed up war production, King convened a meeting of prominent representatives of the entire labour movement with his cabinet in June 1940. Both the labour leaders and Department of Labour officials favoured

THE EXHAUSTI ON OF I NDUSTRI AL VOLUNTA R I S M

235

a statement of labour principles similar to that issued in World War I. However, the CMA was opposed, claiming that such a statement would do more harm than good. According to the employers’ association, not only was it unnecessary but it might prompt union organizing campaigns, which would jeopardize the goodwill that had built up between employers and employees.12 A statement of labour principles was the key concession King made to the labour movement; however, it departed from the World War I precedent in several respects. Most significantly, as the Department of Labour was later to acknowledge, the earlier order was ‘much more forthright in its expression regarding the rights of organized labour’ than that issued during World War II. PC 2685 enumerated 10 principles ‘for the avoidance of labour unrest during the war’. The heart of the order (principles 5–9) concerned collective relations between employers and employees, emphasizing the use of pre-war mechanisms (the IDIA and section 502A of the Criminal Code) to promote industrial peace (principle 5) and to protect workers’ freedom of association (principle 6). The next two principles dealt with the process of collective bargaining. Consistent with several provincial collective bargaining statutes, principle 7 declared the right of employees to bargain with employers through trade unions or other representatives of their choice for the purpose of concluding a collective agreement. Principle 8 declared that collective agreements should be scrupulously observed and that each agreement should provide machinery for the settlement of disputes arising out of the application or interpretation of collective agreements. The federal government’s preference for arbitration as a means for resolving what were known as rights disputes was later incorporated into its compulsory collective bargaining policy. Following the example of several of the provinces (and sounding the theme of even-handedness), principle 9 stated that neither coercion nor intimidation should be used by workers organizing a trade union to influence another worker to join the union. Significantly, and later the focus of much criticism by organized labour, throughout PC 2685 the government employed permissive language to dispel any doubt that the principles were voluntary and not mandatory.13

Wage Controls: An Emerging Contradiction The government’s commitment to its labour relations principles was put to the test as trade unions embarked on organizing campaigns, directing their drives at firms holding war contracts. To make up for

236

LABOUR BEFOR E THE LAW

the decade of depressed wages many newly organized locals applied to the Minister of Labour for the appointment of conciliation boards. Since these boards were appointed on an ad hoc basis and there were few constraints on their discretion, their recommendations varied widely, such that wage rates were getting out of line in plants within the same industry. The boards’ tendency to endorse wage increases placed a strain on federal war coffers, since, as the major wartime purchaser, the government in effect was subsidizing industry’s labour costs. Consequently, government officials, especially in the Department of Munitions and Supply, favoured imposing a strike ban coupled with compulsory binding wage arbitration. Fearful that this might provoke a labour crisis comparable to that which occurred in response to wage controls imposed during World War I, the proposal was withdrawn and a compromise struck. Voluntary wage guidelines were substituted for compulsory binding arbitration and workers retained the freedom to strike after a conciliation board reported.14 Order-in-Council 7440 constituted the first stage in the government’s wage-control policy and it took the form of an instruction to IDIA boards regarding what was to be considered a fair and reasonable wage rate. It covered about 85 per cent of business enterprises in Canada and was designed to maintain the pre-war wage structure; the standard that was selected were the wage rates prevailing between 1926 and 1929 (the last pre-Depression period). Exceptions to the wage standard were narrowly circumscribed and a cost-of-living bonus was provided. In effect, the wage policy was a guideline only, since it contained no penalty for breach by the parties of the wage standard. The minister was required to review the findings of each board and if, in his opinion, a report deviated from the guideline he was to direct the board to reconvene to reconsider its report. This authority was delegated to Justice C.P. McTague, a frequent chair of IDIA boards, who was appointed as the official conciliation adviser. But the review process did little to ensure greater consistency in the conciliation boards’ interpretation of the wage guidelines. Only seven of the 48 board reports received by the Department of Labour during the life of PC 7440 were submitted to the conciliation adviser. Moreover, advice of departmental conciliation officers was frequently disregarded by the boards.15 A fundamental conflict over the interpretation and application of the exception to the wage standard began to emerge shortly after the implementation of PC 7440. At issue was whether the exception to the wage freeze should be liberally construed so as to raise substandard wages to a national level, thereby achieving industry-wide

THE EXHAUSTI ON OF I NDUSTRI AL VOLUNTA R I S M

237

bargaining, or narrowly confined to a local comparison, thus maintaining regional differentials. Before the war there was virtually no industry-wide bargaining outside those sectors covered by industrial standards mechanisms. Organized labour condemned the narrow construction as freezing substandard wage rates, whereas the government argued that the local comparability standard ought to be adopted as national wage rates would fuel inflation. The sharply divergent recommendations contained in the minority and majority reports of the conciliation board in the Peck Rolling Mills dispute in late April 1940, which pitched the SWOC against the Dominion Steel and Coal Corporation, crystallized the competing interpretations of the order, and proved a rallying point for organized labour’s criticisms of the government’s wage-control policy. To resolve the problem of inconsistent conciliation board reports, exemplified in the Peck Rolling Mills dispute, the government made the narrow interpretation of the wage policy mandatory. This undermined the legitimacy of conciliation boards in the eyes of organized labour since the boards’ authority derived from their autonomy to determine reasonable wage rates.16 Organized labour’s criticism of the mandatory interpretation of the wage-controls order was emblematic of the labour movement’s broader dissatisfaction with federal labour policy. While the government was prepared to impose restrictions on organized labour to achieve its anti-inflation policy, it was unwilling to compel employers to recognize employees’ rights to associate in trade unions for the purpose of collective bargaining. As the war progressed, a coercive armour of state-enforced regulations was constructed to restrict workers and their unions at the same time as employers enjoyed virtually untrammelled authority to exercise their managerial prerogatives at the expense of workers’ freedoms. This inequality in the exercise of state compulsion proved to be the crux of labour’s discontent with the federal government’s labour policies, which in early 1941 began to be manifested in an increase in strike activity. Unions faced a complex matrix of government regulations, legislation, and legal doctrines through which they had to navigate. The legitimacy of the IDIA was undermined by delays, inconsistent board recommendations on the crucial issue of union recognition, and the government’s increased reliance on the legislation’s coercive elements to combat strikes. In an expanding economy, the delay imposed by the IDIA on unions’ resort to the strike weapon tended to advantage employers, especially in situations in which the primary issue was union recognition. And once a conciliation board was appointed there was no guarantee that it would recommend union recognition. While

238

LABOUR BEFOR E THE LAW

some boards favoured union recognition to resolve the dispute, others simply recommended that the employer meet and bargain with a committee of employees. Despite the requirement that IDIA boards conform to the government’s statement of labour relations principles, union recognition was not unanimously accepted by conciliation boards.17 Although it was used sparingly at first, there was a coercive edge to the Act and it was threatened and invoked almost exclusively against unions. This practice was not new. It had been used during World War I to prosecute strike leaders. 18 Moreover, the threat of prosecution under the IDIA was not the only form of coercive state intervention that workers faced. Even when a strike was lawful, strike-related activities employed by workers and their unions could run afoul of the law. Throughout the war, the common law continued to provide employers with a basis for applying to the ordinary courts to obtain injunctions to restrain picket-line behaviour and the criminal law was invoked to penalize workers once they were on the lines. Generally, injunctions during the war were invoked in the types of disputes to which they had increasingly been confined during the 1930s, that is, to situations in which striking workers were appealing to fellow and sister workers or members of the public to respect their picket lines. Interlocutory injunctions provided an expeditious and cheap means for employers to avoid harassment from trade unions since they were easy to obtain and readily enforced by the police. However, in the early 1940s some Ontario courts exercised restraint in using the common law to restrict peaceful picketing. There was a growing recognition among the judiciary that injunctions might not have the desired effect. According to the Quebec Court of King’s Bench: the right to strike, being an exceptional right, must of course be exercised within strict limits, but the calling of any strike is bound to create bad feelings and give rise to some disorder; no union, however perfect, should be held responsible for all cases of disorder nor be enjoined as soon as any disorder occurs. An injunction should be the last, not the first remedy. If any breaches of the criminal law occur, the police are there to enforce order. In 1942 the Ontario government legislatively endorsed the emerging judicial trend towards restraint in the use of injunctions by amending the Judicature Act to confine the duration of an ex parte interim injunction in a labour dispute to four days. Thus, while injunctions continued to be available to employers, they could no longer expect

THE EXHAUSTI ON OF I NDUSTRI AL VOLUNTA R I S M

239

with certainty that they would be granted to restrain peaceful picketing. There was no doubt, however, that judges would issue injunctions to restrain mass picketing. The problem was whether they would be effective in such a context.19 The courts showed less restraint in punishing workers for strikerelated activities when criminal actions were alleged to be involved. Unlawful assembly, intimidation, and assault continued to be the basis for convicting striking workers during the war, and criminal charges were as likely to be brought against workers employed in war industries as against those who were not. Provincial governments, especially in Ontario before 1942 and in Nova Scotia, remained willing to supplement local constabularies with additional police when employers or municipal authorities requested assistance. These traditional forms of state coercion were supplemented by the Defence of Canada Regulations and an amendment to the aid to civil power legislation that permitted provincial attorneys general to delegate their authority to call out the troops to Crown attorneys and magistrates.20 Employers, by contrast, had little to fear that state coercion would be used to restrict their freedoms. Although s. 502A of the Criminal Code, which made it an offence to refuse to employ a person for the sole reason that the person was a member of a lawful trade union, received royal assent a mere month before war was declared, it did little to protect workers from anti-union employers. It served to raise unionists’ expectations, but when attempts were made to have employers prosecuted for discharging union members, hopes were quickly dashed. In September 1939, George Burt, the Canadian director of the UAW, laid a charge through a Crown attorney against officials of the Hobbes Glass Co. for violating s. 502A. He was given the runaround by the Crown attorney, who, professing ignorance of the law, informed Burt that he would need to get advice from the Attorney General’s office. In response to Burt’s inquiries, Conant informed him that although ‘the section is important symbolically it is unlikely that convictions will be attained.’21 In Ontario, public prosecutions under s. 502A were stymied by the refusal of Crown attorneys to bring charges when union leaders alleged that union organizers had been fired. Even when unions brought private prosecutions under s. 502A they had little success. The restrictive wording of the section combined with the burden of proof and the requirements of criminal proceedings to make convictions rare. In the unlikely event that an employer simply pleaded guilty to the offence it was possible to obtain a conviction. In one remarkable case, the Quebec Court of King’s Bench dismissed an

240

LABOUR BEFOR E THE LAW

appeal by an employer from his conviction under s. 502A. The court refused to accept the employer’s reasoning that the magistrate had erred in interpreting the wording of the section, which read ‘sole reason’, to mean ‘principal reason’ when he found that six employees were dismissed once they joined the Amalgamated Clothing Workers of America. According to the court, ‘the effect of Article 502A could always be thwarted by [the employer] invoking some minor dereliction as a concomitant cause depriving the Article of any effect.’ Much to the dissatisfaction of the labour movement, however, this decision proved to be the exception rather than the rule. In fact, the Quebec Court of Appeal overturned it. When pressed to enforce the provision against employers, the federal Minister of Labour simply responded that the government had no inquisitorial power to pursue the matter. Despite organized labour’s constant and concerted demand for the federal government to amend s. 502A of the Criminal Code to provide real protection for employees who sought to exercise their freedom to join unions, the government remained content with hollow symbolism.22 The hypocrisy of the government’s labour relations policy was revealed in its treatment of a dispute between the SWOC and the National Steel Car plant in Hamilton. At issue were the company’s failure to recognize the SWOC as the bargaining representative of its employees and alleged discrimination against union members. After officials of the Department of Labour tried unsuccessfully to resolve the dispute, a conciliation board was appointed. Although earlier actions against the employer under s. 502A had been dismissed by a magistrate, the conciliation board issued an interim report recommending that the company reinstate the dismissed workers. Most significantly, it recommended that a plant-wide, government-supervised vote be conducted and that if the union won the vote the company—in accordance with PC 2685—should recognize and bargain with the union. When the company refused to reinstate the workers a strike ensued and the government appointed E.J. Brunning as controller of the plant to ensure that production was not disrupted. The SWOC announced a one-day sympathy strike in various steel plants but called it off when the Minister of Labour declared it would be illegal. The employees returned to work after the controller reinstated the dismissed employees and the Department of Labour conducted a representation vote, provoking the Globe and Mail to accuse the government of state socialism and spinelessly capitulating to the intimidation tactics of the CIO. Although the employees indicated their desire to be represented by the SWOC by a three-to-one majority, the

THE EXHAUSTI ON OF I NDUSTRI AL VOLUNTA R I S M

241

controller refused to recognize the union. Instead, he agreed only to meet with an employees’ committee to consider the outstanding issues in dispute. In a letter to the Minister of Labour, J.L. Cohen (the employees’ representative on the conciliation board) charged that in refusing to recognize the union the controller was acting on the instruction of the government. If the government failed to reverse its policy, he warned that it would ‘create a difficult situation more aggravated even than the previous condition since a dispute on such an issue would appear to be one, not between the union and the company management itself, but between the union and active government policy in respect to union recognition and collective bargaining.’23 Cohen’s suspicion was correct; the controller’s insistence on recognizing only an employee committee was based on instructions originating in the War Committee of cabinet. Although the Prime Minister expressed sympathy for organized labour’s view that PC 2685 required that government-controlled companies enter into collective bargaining arrangements with trade unions, he was met by the combined opposition of his most powerful ministers. Providing a legal ground for the controller’s refusal to recognize a trade union, the Minister of Justice, Ernest Lapointe, opined that all emanations of the Crown, which included undertakings under the charge of a government-appointed controller and Crown corporations, were legally incapable of entering into collective agreements with trade unions. C.D. Howe was opposed to the adoption of any policy that would surrender industrial plants to ‘agitators’ who interfered with war production, which included—in his mind—the local union organizers at the Hamilton plant. Both ministers feared that if the union were to obtain a collective agreement in the National Steel Car plant it would trigger a campaign to organize the workers in all government-controlled enterprises. The Minister of Finance, J.L. Ilsley, recommended that recognition in government enterprises be limited to employee committees that were freely chosen by the affected workers.24 In the final report, both the chairman and employer’s representative on the conciliation board accepted the controller’s position that as a government appointee he had no authority to recognize and bargain with a trade union. In fact, the majority concluded that conciliation boards had no authority with respect to recognition disputes in government-controlled undertakings. This provoked Cohen to complain that the majority had abdicated its responsibility to promote the principles contained in PC 2685 in favour of government opinion. The union called a second strike, this time directed at the government’s labour relations policy, to which the government responded by

242

LABOUR BEFOR E THE LAW

replacing Brunning with H.B. Chase, Howe’s Director of Labour Relations, who was much reviled by organized labour. Cohen’s prediction also proved correct: the appointment of the controller and his refusal to recognize the union, instead of defusing the dispute, shifted the focus of organized labour’s displeasure from the particular employer to the government’s labour policy in general. The National Steel Car dispute provided the occasion for the triumph within cabinet of the concern with uninterrupted production, led by those responsible for supply, munitions, and finance, at the expense of King’s scruples regarding the integrity of the government’s commitment to PC 2685. In addition, it also initiated the government’s policy of encouraging employee committees as a substitute for the recognition of trade unions—a policy that resulted in a nationwide controversy during the Kirkland Lake strike.25 By the spring of 1941 the federal government faced a crossroad for its labour policy. Not only were labour leaders expressing their dissatisfaction with the Liberals’ wartime labour policy; more importantly, they seemed unwilling or unable to control workers’ unrest, which was taking the form of sudden mass walkouts. Even King’s traditional allies in the labour movement, the leaders of the TLC, were highly critical of what they regarded as the unwarranted interference of the Department of Munitions and Supply in labour matters. The CCL was much more forthright in its condemnation of federal labour policy and demanded legislation along the lines of the Wagner Act.26 But beneath the labour movement’s growing consensus on the need for a mechanism to enforce the principles articulated in PC 2685, political tensions and jurisdictional rivalries between the two key union congresses were increasing. CCL president Aaron Mosher wrote to King complaining that his government was giving undue recognition to the TLC in view of the relative importance of the two central labour bodies. He pointed out the CCL represented practically all the organized workers in the basic and mass-production industries in Canada, with a membership almost as large as its rival. Moreover, C.S. Jackson, the leader of the United Electrical, Radio and Machine Workers (UE), alleged, with some justification, that the practice of conciliation boards tended to favour established craft unions at the expense of new industrial unions both by granting the former jurisdiction in disputes involving the two types of unions and by delaying the conciliation process in disputes that only involved the latter.27 Tensions and rivalries were also apparent within the CCL. At the same time that Mosher was complaining to King about the TLC, he was also writing to Charles Millard to chastise the aggressive industrial

THE EXHAUSTI ON OF I NDUSTRI AL VOLUNTA R I S M

243

unionist for his intemperate criticisms of the federal government. And while Mosher took on the unenviable task of attempting to restrain Millard, both of these men were united in their struggle to defeat Communist influence within the CCL. After Millard began to purge Communists from positions within the SWOC, in the fall of 1940 he persuaded the CCL executive committee to ride roughshod over the Congress’s constitution by transferring the vast powers of the representative council to itself and thereby sidelining the Communistinfluenced unions.28 The splits within the labour movement were seized upon by both Canadian manufacturers and government officials as the cause of labour unrest. In a brief submitted to a closed meeting of the War Committee of cabinet in the spring of 1941, the CMA propounded its foreign agitator theory of labour unrest. It identified the CIO unions as the chief cause of what it characterized as the dangerous labour situation. Furthermore, the CMA equated CIO organization with Communist subversion and charged that 90 per cent of the labour unrest was imported from the United States. It claimed that CIO unions were using the Industrial Disputes Investigation Act to facilitate union recognition by pushing for government-sponsored representation votes. Consequently, the CMA recommended that the Act be amended so as to limit the appointment of conciliation boards to cases involving bona fide grievances and that a ban on industrial action be imposed.29 The CMA’s allegations were initially dismissed as hyperbole by the War Committee. Howe charged the manufacturers with ‘flagrant disregard for labour laws’, and Labour Minister Norman McLarty claimed that most of the difficulties confronting his department arose from allegations of employer discrimination against employees for trade union activity. The Prime Minister declared that although his government held no brief for the CIO he would not take any action that would ‘fuel the flames’ of labour unrest.30 Despite his initial scepticism, however, Howe proved susceptible to the CMA’s scaremongering and by the end of May he had embraced its analysis. He identified the labour situation that resulted from the CIO activities as the most pressing war problem. Echoing the CMA’s complaint, Howe claimed that the IDIA was capable of abuse by unscrupulous representatives of organized labour and should be amended.31 Officials within both provincial and federal labour departments identified trade union irresponsibility as the cause of industrial unrest and the major challenge for government labour policy. At a meeting

244

LABOUR BEFOR E THE LAW

of the Canadian Association of Administrators of Labour Legislation in May 1941, Adam Bell, BC’s deputy minister of labour, expressed his concern that freedom of association was being hijacked for illegitimate purposes: If freedom of association is used by labour to enhance the position of the workers, this laudable objective brooks no denial from any quarter. . . . But when we see this extended measure of freedom so widely exercised in trade union rivalry, finding an outlet in internecine trade union strife and, not infrequently, the instrument of subtlety and skill in questionable hands, that takes unwitting and sometimes unwilling participants far beyond the true sphere of the labour movement, some apprehension for labour’s future must creep in. That is largely labour’s problem; but as government officials, it is also ours. So frequently labour’s problems become problems of the government; and the government, despite the altruistic optimism accompanying the event, is not free from the situation brought about by freedom freely given. While some officials, like Bell and Howe, emphasized the political sympathies of unionists as the marker of irresponsibility, others stressed their lack of maturity. Bryce M. Stewart, the federal deputy minister of labour, told the CMA’s 1941 convention that the cause of industrial unrest was the new unionist, who, coming of age during the Depression, lacked the moderating contact of older trade unions: ‘this group of insurgent young people have gotten into these new and expanded industries of ours. Inexperienced in trade unionism, they feel their sense of power, and they want to rectify things drastically. How to deal with this group is a major problem.’32 In the minority were officials within the Department of Labour who implored the government to recognize that war industries were vulnerable to industrial disruption ‘because of their past or present obsolete, anti-union, industrial relations policies, and that not all attacks on a war industry’s labour policy are ipso facto subversive in origin, intent or purpose.’ Margaret Mackintosh, the chief of the Legislative Branch of the federal Department of Labour, advised federal and provincial administrators of labour law not to be: affected by slogans and labels like ‘radicals’, ‘agitators’, ‘Bolsheviks’, (how thankful we are now to the Bolsheviks we derided 20 years ago) or by the host of other catchwords by which the public is misled by anti-union employers and by the strange delusions of some journalistic minds. The radicals and agitators of yesterday

THE EXHAUSTI ON OF I NDUSTRI AL VOLUNTA R I S M

245

are the respected leaders of today. Without them there would be no progress in any field. The few individuals who like to stir up trouble for its own sake can only do so where there are genuine grievances. But such warnings had little influence on federal labour policy, which continued to equate union irresponsibility with strikes in general and wildcats in particular.33 The dominant analysis of the cause of labour unrest failed to appreciate the growing divergence between union officials and the rank and file. Recourse to strike action was more likely to be at the initiative of the rank and file and local leaders rather than authorized by the regional, national, or international leadership of the union. And while it was true that the CIO-CCL unions were more likely than their counterparts in the TLC to engage in strikes, it was not so much that their leaders were especially radical or militant but because they were attempting to organize the mass-production industries in which employer resistance to collective bargaining was the best organized and least compromising. In fact, the leaders of both the TLC and CCL were concerned to exercise greater control over strikes by their affiliates.34 By the spring of 1941 this orientation presented labour leaders with a dilemma. Trade unions needed to be seen as responsible within the framework established by the government in order to have a say in government policy and to be recognized as the legitimate representatives of workers for the purpose of collective bargaining. This meant that labour leaders had to ensure that they could control their members and deliver uninterrupted production. However, if they did so, they lost legitimacy in the eyes of their members, and once this occurred they could no longer prevent wildcat strikes. Moreover, unless labour leaders organized and backed strikes the government would simply continue to ignore workers’ demands for better wages. Workers’ militancy and willingness to go on strike were the basis of unions’ bargaining power against both politicians and employers. The government’s choices were equally stark and its constraints as complex. It had to ensure industrial peace while simultaneously combatting inflation. It needed employers’ support for war production— and the majority of employers were adamantly opposed to trade union recognition and collective bargaining. However, its labour policy was beginning to antagonize even the responsible leaders within the labour movement whose support it needed to contain the growing labour unrest.

246

LABOUR BEFOR E THE LAW

The Limits of Coercion: Spring 1941 to January 1943 In the late spring of 1941 the government addressed Howe’s and the manufacturers’ demand for uninterrupted production, sweetened its labour policy with symbolic concessions to organized labour, and increased its reliance on coercion to force union leaders to behave responsibly. The threat of a strike ban was used to get labour leaders to acquiesce to the government’s policy of voluntarism regarding union recognition and collective bargaining. On 6 June, McLarty informed Parliament that: If you enter into the field of compulsion on the one side, you have to enter it on the other, and then you stir up inevitable difficulty. One trouble leads to another. If you have compulsory recognition, then you must have compulsory arbitration, and I believe that labour organizations of this country are not in favour of that.35 The government’s first step was to respond to the complaints of Howe and the CMA that the IDIA was being used by ‘trouble-makers’ to promote union recognition. Justice McTague, the Minister of Labour’s conciliation adviser and a frequent chairman of conciliation boards, described the new ‘technique in labour conciliation machinery’: A certain union applies to the Minister of Labour for a board of conciliation. It represents that it is the accredited bargaining agency for the employees in a certain plant. The fact may be that it does not represent the majority at all. The next step is that the parties appear before the conciliation board, and then the question arises as to whether the union represents the men or not. The union executive then suggests that a vote be taken. The conciliator appointed by the union mildly and subtly suggests that the only fair way to ascertain the disputed fact is for the conciliation board to order a vote. The chairman and the other conciliator, who usually have not the necessary experience to recognize the technique, agree and a vote is authorized and held at the expense of the Department of Labour.36 In early June, the federal government introduced two modifications to the conciliation process. First, the IDIA was amended to prevent any person from serving on a conciliation board if that person, either at the time of or six months preceding an application for a board, was or had been a solicitor, legal adviser, counsel, or paid agent of either of the parties to a dispute. It proved initially to be the most controversial. McLarty justified the change on the ground that it would ensure that conciliation boards adopt a judicial approach to the

THE EXHAUSTI ON OF I NDUSTRI AL VOLUNTA R I S M

247

resolution of industrial disputes. But during debate on the bill, the CCF was able to call the government to public account for its covert agenda, which was to exclude prominent representatives of organized labour, such as J.L. Cohen, from sitting on conciliation boards. Cohen had been a thorn in the government’s side as a member of the conciliation boards dealing with the SWOC campaign to establish an industrywide wage rate in basic steel and he used his position both to castigate the federal government’s labour policies and to promote union representation votes. Although McLarty denied that specific persons were targeted, he admitted that the amendment had a wide scope and that, for example, a solicitor acting for a national union would be ineligible to sit on a board considering a dispute involving an affiliated local. Since Cohen was the SWOC solicitor, the amendment disqualified him from sitting on any future boards considering disputes in the steel industry. Despite the CCF’s criticisms and organized labour’s misgivings, the bill received royal assent on 14 June 1941.37 The second measure, PC 4020, established a permanent tripartite commission called the Industrial Disputes Inquiry Commission (IDIC), the members of which were to be appointed by the Minister of Labour and granted the power of commissioners under the Inquiries Act. At the Minister of Labour’s discretion, disputes could be referred to the IDIC, which was required to conduct a preliminary investigation and make some attempt to resolve disputes that formed the basis of an application for an IDIA board. If the IDIC failed to settle a dispute it was to advise the minister whether or not a conciliation board should be appointed. At first, organized labour supported the IDIC since it was supposed to clean up the backlog of requests for IDIA boards, expedite the conciliation process, and lead to the appointment of a conciliation board without a strike vote having to be conducted— a change labour leaders had long requested. The government also held out the promise that the IDIC would deal with complaints of employer discrimination. The appointment of Humphrey Mitchell as the chair of the IDIC further bolstered its legitimacy since he had been active in the union movement prior to his brief foray into politics and his employment by the Department of Labour. But despite its promise, unions came to object to the IDIC’s practice. Not only did it endorse substituting employee committees for independent unions in order to resolve recognition disputes, something the CMA advocated, but it imposed additional delays before unions could lawfully resort to strike action.38 A primary concern for the government was the increasing propensity of unions and workers to ignore the conciliation process and resort to immediate strike action to press their demands. The CMA

248

LABOUR BEFOR E THE LAW

demanded that the government enforce its labour laws and intern anyone ‘guilty’ of inciting an illegal strike. McLarty formalized a policy to deal with strikes that were called in violation of the IDIA. He divided illegal strikes into two general classes distinguished by whether or not the workers involved knew that the strike was illegal. McLarty was concerned with strikes in which the workers and their leaders knew that their actions were illegal, and he cited a number of examples in which he identified ‘alleged Communists’ as the instigators of illegal action. The solution he proposed was twofold. First, Department of Labour officials were to inform the strikers of the illegality of their action, advising them to return to work and submit to conciliation. Second, as soon as the strikers received notification from the Department of Labour, the matter was immediately to be turned over to law officers of the Crown to initiate prosecutions under the IDIA targeting the strike leaders. McLarty was convinced that if this procedure were followed in a few instances the matter of illegal strikes would be at an end.39 The government’s decision to use the coercive sanctions provided under the Industrial Disputes Investigation Act to stop the strike by UE against the Canadian General Electric (CGE) plant in Toronto became a cause célèbre. When the company refused C.S. Jackson’s request to begin negotiations with the union, the workers declared a ‘holiday’. After the company rejected a subsequent request by the union stewards to negotiate, Jackson sent Labour Minister McLarty a telegram accusing CGE of violating PC 2685 by refusing to negotiate with the union. The minister’s response was to have Jackson and 14 stewards charged with inciting an unlawful strike. At the trial the charges of inciting were dropped; however, the police magistrate convicted the stewards of participating in an illegal strike and fined each of them $20 a day for every day they were off work. When the union appealed the convictions, they were quashed on the narrow technical ground that the plant did not fall within the scope ‘essential services’ covered by the extended IDIA. Although the decision was a victory for the CGE stewards, it was pyrrhic for Jackson, since the government decided not to pursue the charge under the Act against him but to intern him under the Defence of Canada Regulations instead. Moreover, the court decision did not deter the federal government from launching subsequent prosecutions against union leaders and workers who engaged in strike action in contravention of the IDIA. Although the results in these cases were mixed, they clearly demonstrated the government’s willingness to use the IDIA to coerce strike leaders.40

THE EXHAUSTI ON OF I NDUSTRI AL VOLUNTA R I S M

249

But this technique did not stop the proliferation of illegal strikes. The government’s policy of imposing additional layers of conciliation and increasing the number of hurdles over which unions had to jump before they could lawfully resort to strike action simply exacerbated labour unrest. In this context, resort to coercion undermined the legitimacy of the federal government’s labour policy instead of promoting pragmatic acquiescence to it. At the same time that the Minister of Labour was implementing measures to strengthen the conciliation process and curtail illegal strikes, he also responded to organized labour’s complaint that nothing was being done to prohibit employers from discriminating against employees who were union members or involved in union activities. In March 1941 he asked the National Labour Supply Council (NLSC), a tripartite consultative committee, to devise a method to deal with this problem. Since the CCL favoured statutory support for collective bargaining along the lines of the Wagner Act, it commissioned Cohen to draft a proposal to establish an administrative tribunal with the power to investigate and prosecute unfair labour practices committed by employers, and the CCL representative submitted it to the NLSC. The CMA opposed the proposal, arguing that it was one-sided, interfered with employers’ freedom of expression, and conflated the roles of prosecutor and judge. Moreover, the employers’ association preferred the courts as the forum to deal with complaints of discrimination.41 However, it was the TLC’s antipathy to the measure, which was based on the AFL’s experience that the Wagner Act had favoured industrial unions affiliated with the CIO over its members, that defeated it. The NLSC came up with a compromise, which reaffirmed the government’s policy of even-handedness and voluntarism. On 2 July 1941 the cabinet issued PC 4844, which amended the powers of the IDIC. At the direction of the Minister of Labour the Commission was authorized to: examine into any allegation that any person has been discharged or discriminated against for the reason that he is a member of or is working on behalf of a trade union or that any person has been improperly coerced or has been intimidated to induce him to join a trade union and failing settlement of the matter at issue, to forthwith report its findings and recommendations to the Minister of Labour.42 Although the order made it easier for the IDIC to investigate complaints of employer discrimination by dispensing with the requirements of the existence or imminent apprehension of an industrial dispute and a strike vote, the investigation and follow-up actions

250

LABOUR BEFOR E THE LAW

remained firmly within political control. Not only did the Minister of Labour have the sole authority to initiate an investigation, but the IDIC had no authority to enforce its recommendations. Only after the sustained lobbying of organized labour was the minister empowered to issue binding orders implementing IDIC recommendations; yet, no penalties were provided for violations of the cease-and-desist order of the minister until 20 May 1943. This amendment constituted the government’s first, albeit minor, departure from voluntarism in its wartime labour policy to assist trade unions.43 The provisions requiring ministerial initiation of the process and ministerial appointment of the Industrial Disputes Inquiry Commission tended to undermine its autonomy and legitimacy, and ultimately the IDIC supplanted the IDIA boards as the primary agency of conciliation, likely because there was no requirement for it to give reasons for its actions or for the minister to publish its recommendations. Although the IDIC had no explicit power to defer a strike, it could, by prolonging its investigation, postpone the time at which it would become lawful for employees to strike—since a strike remained unlawful until after an IDIA board reported. Organized labour soon came to believe that the hidden function of conciliation was to exhaust the militancy of workers and the resources of unions. Instead of facilitating the peaceful resolution of industrial disputes, the IDIC both delayed recourse to industrial action and prevented the IDIA from being used to further union recognition via the mechanism of representation votes by screening applications for conciliation boards.44 But as much as unions chafed under the delays imposed by the IDIC, it was the practice of its chairman, Humphrey Mitchell, of recommending employee committees as the resolution to disputes over trade union recognition that damned the federal government’s labour policy. In a number of disputes in which employers flatly refused to recognize a CIO union, Mitchell advocated the establishment of single-plant committees. Organized labour was outraged with this solution, regarding employee committees as the antithesis of the principle of free collective bargaining with representatives of the employees’ choice, as articulated in PC 2685. In an influential and widely circulated booklet commissioned by the SWOC, Cohen condemned the one-plant employee committee plan proposed by the IDIC as: a mechanism which is designed to deprive workers of the aid or support of outside representation; it interns workers in their own industrial plants—cut off from association with, or support of, their fellow workers in the industry; it deprives them of any

THE EXHAUSTI ON OF I NDUSTRI AL VOLUNTA R I S M

251

knowledge of what goes on in other sections of the industry in which they are working; it prevents the combined influence of all workers within a given industry; it exposes the workers within a plant to the doubly destroying influence either of favouritism for the well-behaved employee, or subtle, if not outright, discrimination against the more aggressive employee. Unions (and subsequent commentators) equated employee committees with the much-reviled company union. Although technically distinct, since workers were able freely to select their representatives to employee committees rather than having them imposed on them by the employer, both forms of representation isolated employees from broader moral, institutional, and financial support. Even though the IDIC could not force employee shop committees on workers, at the very least, such recommendations stiffened the resolve of employers who refused to recognize unions. Moreover, the fact that some IDIA boards were prepared to recommend union recognition in the face of IDIC support for an employee committee further compromised the legitimacy of the federal government’s labour relations policy. During the Kirkland Lake dispute, Mitchell’s support for employee committees and his elevation to cabinet served to unite the TLC and CCL against what they identified as King’s support for company unionism.45 Despite King’s avowed preference for conciliation as the method for dealing with industrial disputes, the federal government turned increasingly to coercion to ensure uninterrupted production. Within cabinet, Howe was its key advocate, and although he was not able to persuade his colleagues to go as far as he wanted and ban CIO unions, he was able to use his position as the minister in charge of war production to wrest major concessions from them. The illegal sit-down strike on 24 July 1941 by 400 pot men in the Aluminum Company plant at Arvida, Quebec, which halted production at the most important aluminum plant for the Allied war effort, was the decisive event enabling Howe to force King to deviate from the path of conciliation.46 Frustrated by the need for provincial approval for the deployment of troops to end the strike and by the refusal of his cabinet colleagues to accept his view that enemy aliens were behind it, Howe submitted his resignation to King on 26 July 1941. At a subsequent cabinet meeting, Howe agreed to retain his post on the condition that he be granted the powers to deal with such emergency situations, including the authority to deal with strikes. Although King was of the view that sabotage was not involved in the Arvida strike, he capitulated to Howe. On 29 July, the cabinet issued PC 5830, which

252

LABOUR BEFOR E THE LAW

amended the Defence of Canada Regulations to authorize the Minister of National Defence, on Howe’s request, to call out the troops to deal with labour disputes without reference to municipal or provincial authorities.47 The CCL denounced the order; not only had there been no consultation, it gave unrestricted power to a single minister to use force without first exhausting the established conciliation machinery. The Royal Commission appointed to investigate the Arvida dispute concluded that although the strike was illegal, it had not been caused by subversives but by a gradual deterioration in labour-management relations. Yet, even after Howe’s agitator theory was exposed as a canard, he retained the power unilaterally to invoke force to ensure production. In 1943, a detachment of troops, supplemented by the RCMP, was sent in to end an illegal aluminum strike in Shawinigan and two local officials of the International Union of Aluminum Workers were charged, convicted, and sentenced to six months in jail for violating the Defence of Canada Regulations.48 Throughout the war the federal government developed its broader labour policy in the context of specific strikes. The strike in the fall of 1941 by 4,000 UAW workers at the McKinnon plant in St Catharines (which made anti-aircraft guns and munitions) was another example of this general pattern. As in most cases, the government imposed an additional hurdle for workers to jump through before they could lawfully go on strike. Although Bryce Stewart, the deputy minister of labour, attributed the lengthy strike to the constant interference of Department of Munitions and Supply officials determined to use it as the occasion to ‘break the power of the CIO in Canada’, the federal government’s response was to wrap unions even tighter in the web of legality. On 17 September 1941 it issued PC 7307, which required a union to win a majority of those affected by a strike in a supervised strike vote before being allowed to engage in lawful collective action. This action was taken without consulting the National Labour Supply Council (NLSC), although the Minister of Labour met informally with Tom Moore and secured the TLC leader’s commitment to do what he could to obtain the Congress’s support for the measure. Echoing the view of the Department of Munitions and Supply that strikes were the work of agitators rather than the outcome of general and legitimate employee dissatisfaction, McLarty stated that the compulsory strike vote was necessary ‘to prevent the calling of strikes by snap decisions of minority groups’.49

THE EXHAUSTI ON OF I NDUSTRI AL VOLUNTA R I S M

253

The president of the CCL, Aaron Mosher, complained that PC 7307 ‘virtually abolished the right to strike’ and revealed the government’s double standard in the treatment of employers and unions: ‘while this and other labour legislation imposes restrictions upon the workers, the Government has shown no indication of any desire to impose upon employers its policy respecting the rights to organize and bargain collectively.’ Two features of PC 7307, in particular, raised organized labour’s dander. First, the minister had the sole authority to decide who was entitled to vote and he could enfranchise employees the union had not even attempted to organize. Second, the order provided that ‘unless a majority of the ballots of those entitled to vote are cast in favour of a strike, it shall be unlawful for any employee to go on strike.’ In Parliament, M.J. Coldwell, the leader of the CCF, applied a similar test to the Liberal government: In the last election, 60% of those entitled to vote, voted. The Liberal government received 54% of the votes cast. That is to say, they received 34% of the votes of those entitled to vote. Therefore, under their own order in council, if they applied it to themselves, they could not govern this country.50 As a method of ensuring majority support for strikes PC 7307 was particularly onerous for trade unions, and the history of its operation suggests that such a harsh measure was not called for—the vast majority of votes taken under the order supported strike action. Moreover, the provision was redundant with the requirement that a strike vote be conducted before an IDIA board was established. By insisting on a strike vote the government tended both to induce a strike-minded attitude and to sanctify strike action once the vote was taken. But even though PC 7307 was based on a faulty premise and dubious psychology, it provided the Department of Labour with one last attempt to settle a dispute and effectively imposed yet another layer of conciliation. The first application of PC 7307, in the Kirkland Lake dispute, illustrated the extent to which it could be manipulated to the detriment of the union.51 The dispute between the gold miners and their powerful employers in Kirkland Lake, which began in April 1941 and ended with the strike’s defeat in February 1942, was both a microcosm of the failure of the federal government’s labour relations policy and a turning point for the labour movement. Although there was little support within the CCL for the International Mine, Mill and Smelter Workers’ Union attempt to organize the northern gold mines, it recognized that Kirkland Lake would ‘be the battle-field over the question of

254

LABOUR BEFOR E THE LAW

collective bargaining for the entire Dominion.’ Mine-Mill’s strategy was to organize all of the gold miners in the Kirkland Lake district, both to prevent the mine operators from playing the workers of one mine off against workers at another and to bring gold production to a standstill, thereby forcing the federal government to intervene in a manner favourable to the union in order to ensure the continuity of its primary source of war finance. But what the union did not anticipate was the American entry into the war and a new form of war financing that meant that gold was no longer an essential industry.52 To avoid coercion to end the strike, Mine-Mill followed the advice of the CCL executive and kept to the requirements of legality. This meant that the union had to endure several months of conciliation— first by a federal officer, then by the IDIC, and finally by an IDIA board—before it could embark on a lawful strike. The IDIC, chaired by Mitchell, and the IDIA board, which consisted of Justice McTague as chairman, J.L. Cohen as employees’ nominee, and F.H. Wilkinson as the employers’ nominee, split along predictable lines: Mitchell recommended that the employer recognize an employee committee at each mine, while the IDIA board unanimously advised the employer to recognize the trade union.53 But before the gold miners could legally resort to strike action, they had to satisfy the requirements imposed by PC 7307. On 3 November 1941 the union requested a government-supervised strike vote. Controversy surrounded both the determination of the voting constituency and the interpretation of the result. After intense lobbying by union leaders and their sympathizers, PC 7307 was amended the day before the vote was to be held to remove indirectly affected employees, which included supervisors and managers, from the voting constituency. However, the amendment also allowed the minister to divide Mine-Mill’s multi-mine local into separate voting constituencies at each mine. Not only did this amendment work against Mine-Mill’s strategy of district-wide recognition and collective bargaining, it also served as a precedent for determining the appropriate scope of union representation when the federal government was ultimately forced to implement compulsory collective bargaining. Although the majority of eligible participants voted in favour of the recommendations contained in the conciliation board report, because the vote was tallied on a mine-by-mine basis employees at the four mines where the strike action was not carried by a majority of eligible voters were precluded from striking.54 The local, with the active support of its international parent, the CCL, and several unions affiliated to the TLC, dug in for a long strike

THE EXHAUSTI ON OF I NDUSTRI AL VOLUNTA R I S M

255

since the mine operators were determined to defeat the union, recruiting strikebreakers for that purpose. Ontario Premier Mitch Hepburn promised to ‘recruit an army’ if necessary to maintain law and order and protect those who wanted to work and the Attorney General, Gordon Conant, dispatched a large contingent of provincial police to bolster the municipal police force at Kirkland Lake. But repression did not break the strike; instead, the federal government’s refusal to intervene to support the union led to its defeat. Many believed this refusal was a result of King’s fear that Hepburn was ‘just waiting to denounce the government for selling out to the CIO if he can find an excuse.’55 The timing of the strike was crucial to its defeat. Once the United States entered the war in early December, Mine-Mill no longer had the leverage to persuade the government to compel the mine operators to recognize the union. The substitution of Lend-Lease for gold transfers to finance war supplies meant that gold production ceased to be a priority. Gold mining was declassified as an essential industry and the government focused its attention on steel production. Moreover, the American labour movement adopted a voluntary strike ban, which meant that little financial or moral support could be expected from the American parent in aid of the Kirkland Lake strike. When King announced on 16 December that Humphrey Mitchell was the new Minister of Labour, Mine-Mill’s fear that the government would let the strike run its course was confirmed. Mitchell’s only offer was to refer the dispute to compulsory arbitration, which the workers turned down, fearing a revival of the employee committee option. After striking for almost four months, the gold miners returned to work on 12 February 1942 without winning union recognition. The government’s refusal to force the mine operators to bargain with the union in the Kirkland Lake dispute stood in marked contrast to its intervention in the dispute between Ford and the UAW in Windsor. Although Wallace Campbell, Ford Canada’s notoriously antiunion president, seized upon Mitchell’s employee-shop formula in an attempt to exclude the UAW from the representation vote ordered by the IDIC, he was overruled by the American parent and the federal government. Fearful that a strike would disrupt production in Canada’s leading manufacturer of military vehicles, the federal Minister of Labour, in effect, ordered Ford Canada, on pain of the appointment of a government controller for refusing, to bargain with the union if it won the representation vote. In November 1941 the Ford workers voted in favour of the UAW by a margin of three to two (6,833 to 4,455) and by January 1942 they had won an agreement recognizing the UAW.56

256

LABOUR BEFOR E THE LAW

But the UAW victory at Ford did not signal a lasting change in the federal government’s policy of voluntarism regarding union recognition. Rather, it was a pragmatic exception made to accommodate production demands. Companies continued to fight the labour movement even where a union had the clear support of a majority of workers and the government, tacitly and expressly, endorsed this resistance. A particularly egregious example was the failure of legal officials to bring charges against the men who ransacked Mine-Mill’s office and beat up two union organizers on the night of 24 February 1942 even after two of the attackers admitted that they were hired by an official of the International Nickel Company to stop the union’s organizing drive in Sudbury. In what would be his last defence of his government’s labour relations policy, Norman McLarty justified his refusal to force the gold operators to recognize Mine-Mill in terms that echoed his earlier statement in Parliament: The Government had pursued this policy of non-compulsion during the war period and has tried to deal out even justice to both parties. It is felt that should employers be compelled to recognize and deal with trade unions that the question immediately arises as to whether the employees should be forbidden to go on strike. If compulsion is adopted it must be applied to both parties and when rights are given responsibilities should definitely exist.57 The final nail in the government’s policy of industrial voluntarism was the introduction of compulsory wage controls in the fall of 1941. In June, King had agreed to the railway running trades unions’ demand for a cost-of-living bonus in exchange for their continued political support. But this concession simply provoked the inflationfighting ministers in the cabinet to fight with greater determination for compulsory wage controls. King and senior officials in the Department of Labour feared that unless labour was consulted and some leeway for wage increases was provided the wage control policy would result in disaster. King attempted to get the labour movement onside just before the policy was announced by convening a meeting with the leaders of the various federations, where he informed them that he had managed to wring some concessions on their behalf from his obdurate colleagues. His assessment that ‘the day was certainly saved by meeting the labour men’ proved to be overly sanguine. Organized labour’s response to King’s 18 October 1941 national broadcast announcing the government’s wage-andprice control policy was immediate and combative. Characterizing the wage policy as the first step towards ‘the establishment of a

THE EXHAUSTI ON OF I NDUSTRI AL VOLUNTA R I S M

257

totalitarian state’, the TLC’s Tom Moore criticized it as unjustly freezing low wages. He also questioned why stock dividends were not pegged. Aaron Mosher of the CCL was equally critical, complaining that the wage control policy left ‘no avenue open for the free process of collective bargaining’.58 Despite labour’s objections, on 1 December 1941 the government’s new wage-control policy came into effect, marking the beginning of a six-year period during which wage determination was largely cut off from the regular processes of bargaining. The restrictions imposed were keenly felt by unions; unable to bargain directly for wage increases on behalf of their members, they were forced to make alternative demands of less general appeal to the rank and file. They pushed the edges of the wage policy, focusing on the fairness of the cost-of-living index, which was the basis for the bonus, and attempting to secure a floor of 50 cents an hour below which the control would not apply. However, the rigidity of the controls limited the capacity of unions to represent and control workers.59 The defeat of the Kirkland Lake miners and the administration of the wage freeze inaugurated a year in which the government’s policy of voluntarism came under increasing pressure from the labour movement. At the TLC’s 1942 convention, several affiliates presented resolutions that identified the Kirkland Lake strike as signalling the need for a Wagner Act in Canada. Although the TLC executive was able to persuade the convention that a showdown with the federal government was not necessary, since it was moving towards the kind of legislation that the Congress was seeking, many affiliates were fed up with King’s tactics of evasion and delay. The federal government’s inaction in the Kirkland Lake strike convinced some of the leaders of the CCL that King himself was anti-labour. In his address to the 1942 CCL convention, Mitchell defended the outcome of the Kirkland Lake strike on the ground that single-plant employee committees had been established and refused to commit the federal government to a policy of compulsory collective bargaining. In sharp contrast, the Ontario Labour Minister, Peter Heenan, surprised the delegates by promising that his government would present a bill during the next session, to be drafted with the input of organized labour, which would implement compulsory collective bargaining in Ontario. This drastic turnaround in the Hepburn government’s labour policy—from a position tantamount to open warfare against many of the unions affiliated with the CCL to a policy actively endorsed by the same unions—was prompted by the provincial government’s need to consolidate its support among working people to repel the CCF in the upcoming election and to

258

LABOUR BEFOR E THE LAW

reduce the level of industrial unrest. The convention instructed the incoming executive to prepare a draft collective bargaining measure with which to lobby the federal government.60 The introduction of the compulsory wage ceiling served to heighten what organized labour saw as a contradiction in the government’s policy concerning the use of compulsion in labour relations and to unite the competing factions of the labour movement in opposition to the wage policy. Moore, King’s most stalwart ally in the labour movement, warned the government that it should modify the wage control policy if it wanted to avoid the growth of discontent among large bodies of workers. Moreover, by the end of 1942, the government was embroiled in a major showdown with the steelworkers’ union over its wage-control policy. Led by Millard, the SWOC extended its campaign, inaugurated in the Peck Rolling Mills dispute, to achieve national wage rates in the basic steel industry—a move the government believed threatened the integrity of its wage policy. Various techniques were employed to resolve the dispute, including the appointment of a conciliation board and a Royal Commission, but they served only to defer the strike, which broke out at the beginning of 1943.61 Percy Bengough’s elevation to acting president of the TLC in 1942, in place of the ailing Moore, who had earlier chastised Mosher for the willingness of his affiliates to strike during the war, smoothed the way for a rapprochement between the two most powerful trade union congresses. But what brought the TLC and CCL closer together was that the TLC’s affiliates were increasingly confronting the limits of the federal government’s labour policy. Although jurisdictional rivalries and official jealousies continued to plague the two congresses, they appeared insignificant when compared with the high-handed treatment both received from the federal government, which was symbolized by Mitchell’s support for company unions.62 Despite the convergence of the TLC and CCL against the government, organized labour was far from a unified movement. The election of Pat Sullivan as one of the TLC’s three vice-presidents in 1942 indicated the extent to which the ‘conservative’ umbrella organization had established an entente with its Communist affiliates. However, no similar truce operated within the ranks of the CCL. Instead of resolving internecine conflict, the adoption of a no-strike pledge by unions sympathetic to communism merely served to fuel the determination of the CCL executive to cleanse the organization of fellow travellers. Millard and Mosher led the purge and neither was averse to employing tactics of questionable legality or to sacrificing democracy to

THE EXHAUSTI ON OF I NDUSTRI AL VOLUNTA R I S M

259

minimize the influence of Communist unions and their leaders. Millard tried to forge closer links between the CCL and the CCF, although he was resisted in this endeavour by Pat Conroy, the Congress’s influential secretary-treasurer. Moreover, jurisdictional conflicts among the auto, steel, and electrical unions threatened to tear the CCL apart. But with the exception of the few Communistinspired trade unions such as UE, which embraced the no-strike pledge, the various factions in the CCL could be counted on to unite in opposition to the Liberals’ labour policy.63 In 1942 political trends began to emerge that would significantly influence federal policy towards collective bargaining. On 13 February, the day after Mine-Mill lost the Kirkland Lake strike, the CCF candidate defeated the Conservative Party leader, Arthur Meighen, in a federal by-election in York South riding. This event was significant in two respects. First, the CCF victory signalled a veritable eruption in public support for the social democratic party. Disillusioned with the labour policies of both of the traditional parties, urban workers began to rally around the CCF—a trend that reached its zenith in 1943. Second, the defeat of its leader, primarily over his anti-labour stance, led the Conservative Party to re-evaluate its policy towards collective bargaining. A National Conservative Conference was convened in Port Hope, Ontario, in September to take stock of the party’s diminishing electoral appeal and develop a more acceptable program. The Port Hope program marked a significant change in Conservative labour policy: collective bargaining was accepted in principle, the formation of a national labour relations board on the American model was recommended, and labour’s full freedom of association, selforganization, and designation of representatives of their own choosing was recognized. With the express purpose of maintaining free enterprise, the main features of this program were adopted at the Winnipeg convention in December. By the end of 1942, the Liberal Party stood alone among the federal parties in its refusal to endorse compulsory collective bargaining. Moreover, the strong showing of the CCF and the leftward shift of the Conservatives squeezed the Liberals outside of their traditional centre role. As the war continued this political realignment would have significant consequences for the government’s labour relations policy.64 The immediate consequence of organized labour’s concerted denunciation of the government’s labour policies and the political realignment was a change in the federal government’s policy regarding collective bargaining in government-controlled undertakings. The previous year the Department of Justice ruled that the Minister of

260

LABOUR BEFOR E THE LAW

Labour had no jurisdiction to appoint an IDIA board in governmentcontrolled enterprises. As an indication of its good faith, both the TLC and CCL asked the government to observe the statement of labour relations principles (PC 2685) in its own undertakings. Although King acquiesced to this demand and promised immediate action, it was delayed until 1 December 1942, when the government issued PC 10802, which provided that the labour relations principles enumerated in PC 2685 should apply to employees in Crown corporations and extended the provisions of the IDIA to them. Both the long delay and the actual policy served further to alienate the trade union movement. Although PC 10802 ‘removed any legal doubts respecting the rights of employees of crown corporations to organize and bargain collectively’, it fell short of what organized labour wanted; ‘while it authorized crown companies to enter into collective agreements there was no compulsion upon them to bargain collectively if they choose to ignore representative unions.’ Once again, the government failed to respond to organized labour’s demand that employers be compelled to bargain with the union representing the majority of their employees. And even after PC 10802 came into effect, Howe continued to find excuses for refusing to recognize unions in governmentcontrolled plants.65

Conclusion By the end of 1942, the labour movement, the federal opposition parties, officials in the federal Department of Labour, and even the Hepburn government were in favour of compelling employers to recognize trade unions for the purpose of collective bargaining. Yet, the Liberal government still refused to take the plunge and use compulsion against employers, justifying its position in terms of its commitment to the principles of neutrality, even-handedness, and voluntarism. But its policy of voluntarism was obviously exhausted, just as it was neither neutral nor even-handed. While the right to strike was severely constrained by compulsory conciliation mechanisms and compulsory wage controls, as well as by even more explicitly repressive measures, employers were advised to ignore trade unions and establish employee committees, and they were virtually free to dismiss workers whose only offence was to seek representation by a union.66 With the exception of Ontario, none of the provinces expressed any interest in a mechanism to impose collective bargaining. At a closed-door meeting of the federal and provincial labour ministers in

THE EXHAUSTI ON OF I NDUSTRI AL VOLUNTA R I S M

261

August 1942, Ontario’s Peter Heenan proposed that Wagner-style mechanisms be grafted onto the existing system of national and regional war labour boards. He suggested that the boards be given the authority, backed by the mandamus powers of the court as the mechanism of enforcement, to certify trade unions and compel employers to enter into negotiations with them. But the other ministers raised jurisdictional objections and claimed a lack of political authority to negotiate such a profound change in labour policy. Rebuffed by his political counterparts, two weeks later Heenan promised collective bargaining legislation for Ontario at the CCL’s annual convention.67 Although the spectre of a jurisdictional battle with the provinces may have given the federal government some cause for concern, this was not the decisive reason for its inaction. On several earlier occasions it had overridden provincial opposition and simply used its emergency powers to implement its policies, even if they encroached on the provinces’ peacetime jurisdiction. In 1943, when two more provinces, Alberta and British Columbia, followed Ontario’s lead and embraced compulsory collective bargaining in a bid to stave off the electoral threat posed by the CCF, the federal government brushed the jurisdictional objections aside. Publicly, the federal government invoked liberal principles to justify its labour policy, but privately it had more compelling reasons for rejecting compulsory collective bargaining, which were summarized in a 1942 document, ‘Plan for the Co-operation of the Dominion and Provincial Governments in the Development and Administration of War Labour Policy’. Employer opposition, trade union irresponsibility and rivalries, and the desire to maintain a wage-control policy based on regional differentials led the government to conclude that it was ‘impracticable to attempt to require all employers to bargaining [sic] collectively and conclude formal written agreements in all circumstances’. Contract observance and a ban on industrial action constituted the quid pro quo for trade union recognition—two conditions the government believed organized labour in general (and the CIO unions in particular) incapable of meeting.68 These conditions derived from King’s continuing preoccupation with industrial peace as the goal of labour relations policy. Historically, the federal government refused to intervene in labour relations unless it could impose a constraint on the resort to economic sanctions—for example, compulsory conciliation in exchange for the cooling-off provision. Although many union leaders accepted some restrictions on strikes as the legitimate cost of responsibility and respectability, King threatened to go further than what they were

262

LABOUR BEFOR E THE LAW

prepared to accept by imposing a total strike ban as the price for compulsory collective bargaining.69 By 1943 the federal government could no longer afford to ignore organized labour’s demands. The strike wave, which began in 1941, gained momentum in 1942 as unions affiliated with the TLC began to join in, and crested the next year when one out of three workers across the country engaged in some form of collective action to protest both the government’s wage and labour policies and their treatment by their employers. The threat posed by the CCF to the established parties was obvious when social democrats made unprecedented and unanticipated headway in several provincial elections. King was forced to face the fact that compulsory collective bargaining legislation was necessary to obtain working people’s continued support for established political traditions and economic relations in the postwar period. In the final stage of the war, the debate shifted from the implementation of compulsory collective bargaining to the form and content such bargaining should take. But as we shall see, although workers’ militancy was the cudgel that forced King to accept a policy of compulsory collective bargaining, trade union responsibility was at the core of the emerging class entente. The willingness to exercise authority over their members and a commitment to the sanctity of contracts and the law were the defining attributes of responsible unions. Responsibility and the maintenance of Canada’s regionally based wage structure were at the heart of the government’s compulsory collective bargaining policy.

10

Recognition and Responsibility: The Achievement of Industrial Pluralism, 1943–1948

In 1943, Mackenzie King identified the challenge to his government as the ‘combination of the industrial CIO with the political CCF’. On the labour front, the Liberals faced a new form of union militancy. Instead of trying to contain rank-and-file unrest, national union leaders channelled it against the narrow confines of federal labour policy. The illegal strike by 13,000 steelworkers in Ontario and Nova Scotia in January 1943, which was authorized by the union’s national leadership, brought Canada’s steel industry to a halt and marked the beginning of a series of strikes in the western coalfields, the shipyards of Vancouver and Quebec, and the textile, clothing, and rubber industries that targeted the federal government’s restrictive wage controls. On the political front, King recognized that the rising electoral fortunes of the CCF threatened the Liberals’ continued rule. Moreover, he attributed the CCF’s popularity ‘to resentment of labour at the wage stabilization policy of the Government and even more to what he felt sure was the failure of some of his colleagues in the government to show sympathy for the aspirations of organized labour for increased recognition.’1 The CCF’s growing popularity was a symptom of a larger shift in public opinion concerning the appropriate role of the state in the postwar economy. By 1943 the inevitability of the Allied victory seemed assured and the pre-eminent concern of the Canadian populace became the postwar reconversion to peace. Layoffs in war industries were already beginning to take place. ‘Everyone in the government, in the civil service, and in industry seemed afraid that the dislocation that would accompany reconversion would be marked with massive unemployment and unrest.’2 263

264

LABOUR BEFOR E THE LAW

The initial thrust of the Liberal reconversion strategy was to develop a constellation of social policies that would pre-empt the CCF. Echoing the rhetoric of King’s 1918 book, Industry and Humanity, the National Liberal Federation (NLF), the electoral machine of the federal Liberal Party, proclaimed that ‘Labour is not a commodity but a partner in industry and a principal mainstay of national life’ and went on to describe the postwar role of labour in terms of ‘labourmanagement councils, and the participation, wherever appropriate, of representatives of Labour on wartime boards and other agencies of government’. Even Howe accepted the need for labour representation, going so far as to suggest that Pat Sullivan, the head of the Canadian Seamen’s Union, who had earlier been interned as a Communist, be appointed to the board overseeing the aircraft industry.3 A centrepiece of King’s reconversion strategy was a collective bargaining scheme that would require employers to recognize and bargain with trade unions. Although many employers and several members of his cabinet continued to resist it, King could point to increasing public support. In 1943, Ontario and BC enacted legislation compelling employers to recognize trade unions for the purpose of collective bargaining, and similar statutes were on the horizon in Quebec and Saskatchewan. Moreover, a public opinion poll taken in 1943 indicated that 82 per cent of organized labour and 53 per cent of the Canadian population supported the enactment of collective bargaining legislation. In fact, the next year another poll indicated that 65 per cent of Canadians would prefer unions, rather than big business, to exercise greater control over government.4 In 1944, Bora Laskin declared that ‘to-day a man can speak favourably in public of union recognition and collective bargaining and still be considered respectable.’5 The symbol of this new-found respectability was the federal government’s Wartime Labour Relations Regulations, which came into effect on 20 March 1944. Contained in PC 1003, these Regulations marked the transition in federal labour policy from industrial voluntarism to industrial pluralism, since, for the first time, the federal government compelled employers to recognize and bargain with trade unions. PC 1003 ensured that employers could not exploit the reconversion to peace to crush trade unions. The introduction of the Wartime Labour Relations Regulations resulted in a brief hiatus in industrial conflict, as many unions pledged to ban strikes in exchange for their official recognition. Moreover, it allowed King to redeem the Liberal Party for the TLC, which threw its support behind its traditional ally in the 1945 federal election. But neither the collective bargaining law nor the political

RECOGNI TI ON AND RESPONSI B I L I T Y

265

triumph of King’s rejuvenated social liberalism translated into lasting industrial peace. When the war ended, unions revoked their earlier strike ban to institutionalize more firmly their place in the postwar economy and to make good on the wage demands forgone by their members during the national emergency. Beginning in 1945 and cresting in 1946, unions engaged in a series of strikes that resulted in the loss of an unprecedented number of person days across Canada. Unlike the postwar strikes that occurred in 1919 and led Canada to the brink of a political crisis, the strikes that followed World War II were of a decidedly different nature. Instead of challenging political order, these strikes were an attempt by the centralized bureaucracies of large, mostly American-affiliated industrial unions to cement their place within Canada’s leading industrial sectors. While they were fuelled by the pent-up frustrations of the rank and file, they did not challenge the new regime of industrial legality; instead, union leaders attempted to use the regime to their benefit. State repression, which successfully and brutally crushed the labour unrest of 1919, was unnecessary and unacceptable in light of the altered political and economic conditions of 1946. Although the vast majority of these strikes were for a common package of demands, in particular, union security, wage increases, and industry-wide bargaining, they were confined to single industries and preceded by lengthy negotiations that were closely monitored and mediated by state officials.6 After the reconversion period primary jurisdiction over labour relations returned to the provinces, creating a huge obstacle to industrial unions that wanted to institutionalize national wage rates on an industry-wide basis. And while the federal collective bargaining legislation was used as a model by most of the provinces, the distinctive features of regional political economies influenced the specific legislative regimes. Regionalism and fragmentation would once again become the defining features of Canadian labour relations.

Compelling Collective Bargaining: Constructing a Labour Code The illegal national steel strike of 1943 elevated compulsory collective bargaining to the top of the federal government’s immediate political agenda. Unlike the strike at Kirkland Lake, which the union had fought to gain recognition, the steel union’s target was the federal government’s wage policy and King feared that the steel strike might provoke a wholesale union revolt against wage controls. Steel production had long eclipsed gold as the basis of the federal government’s

266

LABOUR BEFOR E THE LAW

war effort and a shutdown in the steel industry had serious ramifications throughout the entire economy. The steel strike marked a profound change in direction in state intervention; it established a pattern in which the use of coercion abated and its threat diminished as a means for resolving disputes. Instead, the government accepted the need for compulsory collective bargaining and tolerated ad hoc incursions against its wage-control policy. At issue in the steel dispute was the SWOC’s determination to obtain an industry-wide basic wage rate despite the cabinet’s commitment to a regional wage policy. Frustrated by the recommendations and decisions of a series of third parties—first conciliation boards, then regional war labour boards, and finally a Royal Commission, all of which refused to declare steel a national industry and rigidly adhered to the local comparability wage standard—Charles Millard declared a national strike. Production at mills in Sault Ste Marie, Hamilton, and Nova Scotia came to a stop as 14,000 workers joined in. When federal cabinet hardliners advocated the use of force to hold the line on wage controls, King managed to persuade them of the need to compromise. His strategy was to divert attention away from the government by shifting the resolution of the dispute to a third party and the wagecontrol policy by holding up the promise of compulsory collective bargaining while simultaneously conceding as little as possible on the issue of wages. It proved remarkably successful.7 King announced that the National War Labour Board (NWLB) would be reconfigured, thereby distancing Labour Minister Mitchell, whom Millard opposed, from the dispute, and that the new, independent, and representative board would be given the immediate task of resolving the wage issue as well as the broader responsibility of conducting public hearings on labour policy. This announcement had two immediate effects: it brought an end to the steel strike and it offered an incentive for unions to behave responsibly by offering collective bargaining legislation. Mosher was distressed by the illegal strikes of his affiliates, especially the UAW, UE, and the steelworkers’ union, fearing that they would undermine his project of ‘building up in the public mind a confidence in organized labour’s sense of responsibility and soundness of purpose, only to be dragged down to the level of irresponsible and wholly untrustworthy individuals or groups.’ His solution to militancy that overstepped the boundaries of legality was for unions to discipline the malefactors. Other members of the CCL executive were also concerned that affiliated unions not do anything that would jeopardize the federal government’s commitment to making collective bargaining compulsory.8

RECOGNI TI ON AND RESPONSI B I L I T Y

267

But the steel settlement did not put an end to strikes against the government’s wage-control policy. Woodworkers in British Columbia, machinists in aircraft plants in Montreal, coal miners in Alberta’s District 18, shipbuilders, and textile, garment, rubber, and packinghouse workers struck for industry-wide wage rates. These strikes forced the government to work out specific compromises, although the general pattern conformed to its intervention in the steel strike. From the cabinet’s perspective, this policy of ad hoc compromise on the wage front would lead to inflation.9 The government’s need to reformulate its wage-control policy influenced its treatment of compulsory collective bargaining. The cabinet was committed to maintaining wage controls as a prophylactic against inflation and the question was how this could be done, given increased union unrest. Collective bargaining might coat the bitter pill of wage controls, but the government also needed a sweetener to keep the pressure for wage increases down. The National War Labour Board inquiry enabled the government to test the policy waters and gave it time to put the elements of its policy in place for the federal election. The NWLB public hearings, which began in April and ended in June 1943, provided an opportunity for employers and unions to register their views on the wage policy and compulsory collective bargaining. Nothing the Board heard regarding collective bargaining was especially novel; the matter had been throughly canvassed in Ontario and Saskatchewan, where public hearings were held, and the positions of unions and employers were virtually unchanged. Organized labour, with the exception of the Canadian and Catholic Confederation of Labour, advocated compulsory collective bargaining legislation modelled on the lines of the Wagner Act, with some variations from the new Ontario legislation thrown in. Unions expressed their willingness to shoulder new responsibilities as the price of recognition, although they were never very precise about what they were prepared to bear. Business, however, was less united. The CMA was downright hostile to compulsory collective bargaining, identifying ‘irresponsible, lawdefying unions’ led by power-hungry leaders as the cause of industrial unrest. It was prepared to tolerate collective bargaining legislation only to the extent that it was even-handed in the use of compulsion, prohibited any type of union security agreement, and required unions to incorporate. By contrast, the Canadian Chamber of Commerce avoided the harsh language of the CMA and, instead of condemning union leaders, placed the responsibility for the deterioration in labour relations on the confusion engendered by the lack of

268

LABOUR BEFOR E THE LAW

coherence in the government’s wartime labour policy. It was prepared to accept a watered-down version of exclusive bargaining rights for unions, favoured compulsory conciliation backed by criminal sanctions, and avoided the controversial issue of the incorporation of trade unions, although it urged that trade unions be required to abide by the terms of legally binding collective agreements.10 The NWLB, composed of the chairman, Justice C.P. McTague, Leon Lalonde, and J.L. Cohen, split dramatically over wage controls. The majority accepted the government’s premise that wage increases would fuel inflation, but attempted to accommodate labour’s concerns about substandard wages without putting undue pressure on the controls. It proposed a system of family allowances to ensure that low-paid workers received a subsistence level of income, an idea originating with influential government bureaucrats, who brought it to McTague’s attention. Cohen, on the other hand, refused to accept the government’s logic that wage increases inevitably fuelled inflation and adamantly opposed the use of family allowances to subsidize low wages.11 Although the majority and minority reports agreed on the need for a compulsory collective bargaining code administered by a tribunal, they differed in their diagnosis of the causes of industrial unrest and this influenced their specific recommendations. The majority shared the manufacturers’ belief that the ‘new type of labour leader’, characterized by his failure to represent the long-term interests of his constituents and his ambition ‘to organize quickly by stirring up labour unrest’, was the problem. But since the feeling of ‘helplessness and hopelessness’ of unorganized labour when faced with the resistance of ‘reactionary industrial employers’ to union organization led workers to embrace the new militant style of leadership, the majority concluded that if the collective bargaining rights of workers were guaranteed, then workers (who were ‘essentially sound’) would no longer support militant tactics. Cohen rejected this approach as scapegoating. Instead, he identified the cause of industrial unrest in the ‘policy of exclusion—whether from the deliberations of industry or of government’, which shut out workers ‘from active participation within and with industry, and within and with government’. Not surprisingly, since he had previously been hired on several occasions by the CCL and TLC to draft compulsory collective bargaining proposals, his recommendations closely resembled what was proposed by the two largest labour congresses.12 The proposals regarding dispute resolution exemplified the different conceptions of collective bargaining contained in the two reports.

RECOGNI TI ON AND RESPONSI B I L I T Y

269

Cohen recommended that only disputes concerning the interpretation or application of a collective agreement, otherwise known as grievances, should be resolved by means of compulsory arbitration and that permanent tripartite boards of conciliation should be available on the summary application of either party to deal with disputes not otherwise covered by the Labour Code or the wartime wagecontrol order. His proposals left scope for industrial action as the final form of dispute resolution. By contrast, the majority proposed that any dispute—regardless of whether or not a collective agreement existed—should be sent to binding arbitration and that all work stoppages be banned.13 The NWLB’s recommendations served as the starting place of the government’s deliberations on the substance of its collective bargaining law. But the actual form and content of the government’s collective bargaining policy owed more to the civil service than to the inquiry or to the demands of the parties. At a minimum, the government would have to accept a certification procedure backed by unfair labour practices and a duty to bargain to obtain labour’s support. What was distinctive was the extent to which the civil service was able to integrate these basic elements into a collective bargaining regime that emphasized fairness, industrial peace, and union responsibility.14 It was not until quite late in the process, after the draft regulations had been vetted by several departments and received cabinet approval, that employers and unions were consulted. The drafting process within the federal civil service was long and contentious, beginning in September 1943 and ending in January 1944. In large part this was due to the different and sometimes conflicting interests of various parts of the bureaucracy. The senior policy committee, the Economic Advisory Committee (EAC), had the responsibility of making recommendations to the cabinet concerning the NWLB reports, but the Labour Department, as the sponsoring department, had the task of putting flesh on the EAC’s fairly sketchy proposals. The EAC stressed union responsibility and dispute resolution by the parties, while Labour Department officials promoted their own bailiwick, compulsory conciliation, and advocated a ban on strikes. In the draft brought before the cabinet late in November, McTague, who had been invited by King to participate in the deliberations, objected to the Labour Department’s imprimatur, which brought him into conflict with Mitchell. King’s solution to the bureaucratic impasse was to call in Bryce Stewart (the former deputy minister of labour who was then a private industrial relations consultant) to prepare another version.

270

LABOUR BEFOR E THE LAW

Stewart’s revision incorporated the EAC’s emphasis on selfgovernment by the parties by requiring them to establish a grievances procedure, but it also retained the Department of Labour’s emphasis on compulsory conciliation. He stressed union responsibility, going so far as to authorize the NWLB to request trade unions to discipline their members. Moreover, his draft involved a marked change in presentation, for it included ‘an elaborate statement of rights and duties of each of the parties in almost identical language’. Both McTague and Mitchell endorsed Stewart’s proposals, which formed the basis for the next series of revisions. The version finally submitted to unions and employers for their response contained many of Stewart’s features, but it went further, by providing for the compulsory arbitration of interest disputes and, when necessary, a complete ban on industrial action.15 Unions were critical of the draft and they forced the government to make significant changes. Of these, the two most important were respect for a union’s autonomy to order its internal affairs and the rejection of compulsory interest arbitration, which the CMA also opposed. However, several key demands of organized labour were ignored, among them the call for a permanent statute rather than a temporary order, the substitution of remedial powers exercised by the NWLB for criminal penalties prosecuted through the ordinary courts as the method of enforcement, and the extension of the protection from discrimination on account of trade union membership to include trade union activity. Nevertheless, as Eugene Forsey, the research director of the CCL, reported to M.J. Coldwell, of the 48 criticisms directed by the CCL against the draft submission, the final order met 34 fully, two in the main, and one in part.16

Provincial Collective Bargaining Legislation, 1943–1944 The flurry of legislative activity on the labour relations front in five out of the nine provinces immediately before and after the introduction of the federal Wartime Labour Relations Regulations presaged the fragmentation that would obtain once again when jurisdiction over collective bargaining returned to the provinces after the war. Two factors especially provoked this legislative spree: the electoral threat posed by the CCF west of Quebec and the united demands of the TLC and CCL for compulsory collective bargaining. The fact that the CCF had little support east of Ontario helps to account for the failure of the Maritime provinces to introduce compulsory collective bargaining legislation until after the war.

RECOGNI TI ON AND RESPONSI B I L I T Y

271

Despite the common impetus for legislative action, the techniques selected to determine what the legislation should contain varied widely. In Ontario and Saskatchewan, the provincial governments set in motion public processes to forestall criticisms that the ultimate legislation simply reflected special interests. By contrast, in BC and Alberta the provincial governments quickly amended their existing collective bargaining legislation to compel employers to bargain with trade unions. In Quebec, almost immediately after his 1944 election victory, Duplessis capitalized on the work of the Prevost Commission, which had been established by his predecessor to deal with the continuing and bitter problems of inter-union rivalry and labour disputes at pulp and paper mills throughout the province, to enact legislation.17 Although the Ontario Liberal government was the first off the mark to announce that it would introduce collective bargaining legislation, the British Columbia government beat it by one month in enacting such a statute, in part because the BC legislation was more modest in scope. In BC the controversy over compulsory collective bargaining had moved into the courts and the government wanted to re-establish control over the issue in the face of the growing popularity of the CCF. The government’s solution was quickly to introduce and pass an amendment to the Industrial Conciliation and Arbitration Act enabling a trade union that could demonstrate it represented the majority of employees to be automatically certified as the exclusive bargaining agent. What distinguished the BC legislation from that of other provinces was the extent of the Minister of Labour’s discretion to determine majority support and the appropriate bargaining unit. Although the amendment was quite precise in determining what counted as trade union membership and quite explicit regarding decertification, it did not provide for an effective administrative or enforcement mechanism, nor did it address the issue of how to deal with disputes unrelated to recognition or bargaining. Yet, despite these shortcomings, the International Woodworkers of America was able to use the amendment to the Act to obtain an industry-wide agreement for the Queen Charlotte Islands. This took the pressure off the BC government to introduce any further collective bargaining legislation until after the war.18 Similar amendments introduced in other provinces did not have such positive effects. In Saskatchewan, a bill modelled on the BC amendment was defeated in the legislature, largely because of the objections of the provincial CMA. This led to the establishment of a Royal Commission and, after the election of the first CCF provincial

272

LABOUR BEFOR E THE LAW

government in 1944, to very pro-labour collective bargaining legislation. In Alberta the 1943 changes to that province’s Industrial Conciliation and Arbitration Act, which were based on the BC amendment, were quickly followed the next year by additional amendments. The Social Credit government did not develop a deep antipathy to unions and collective bargaining until after the war; in 1944, it attempted to make both employers and unions reasonably happy by requiring majority support in a secret ballot before a union could be ‘appointed’ as the exclusive bargaining agent and by requiring employers to deduct union dues at the written request of their employees.19 In Ontario, an all-star legal cast was involved in drafting and debating the collective bargaining legislation, and the final outcome bore the mark of legalism. Instead of establishing an administrative tribunal—what the most prominent trade unionists wanted—a labour court was set up. Not only did this give the ordinary courts exclusive jurisdiction to shape collective bargaining jurisprudence, it led the CCL’s Mosher and Conroy to complain that ‘the whole procedure connected with the Labour Court is nothing more than a picnic for the lawyers.’ Moreover, despite some of the strongest statutory language outlawing employer interference with unions, in practice the Ontario Collective Bargaining Act opened the way for independent company unions, otherwise known as employee committees. By the end of 1943 the Labour Court had issued 64 certifications, of which half went to independent company unions.20 The Saskatchewan and Quebec statutes marked the two poles of collective bargaining legislation in Canada. The 1944 Saskatchewan Trade Unions Act avoided all of the wartime preoccupation with ensuring industrial peace, established an administrative tribunal with a strong privative clause to keep the courts out of collective bargaining, provided robust enforcement mechanisms, mandated maintenance of membership clauses in all collective agreements, obliged an employer, on the written request of an employee, to deduct union dues, and imposed a low membership threshold (25 per cent of the proposed bargaining unit) to trigger a representation vote. By contrast, the Quebec legislation virtually prohibited strikes or lockouts during the term of a collective agreement (the only provincial legislation to do so), imposed layers of mandatory conciliation as a precondition for lawful strike action, provided rival unions that represented employees in a bargaining unit for which another union was certified with copies of the collective agreement and the right to bring grievances under it, and required evidence of 60 per cent trade union

RECOGNI TI ON AND RESPONSI B I L I T Y

273

membership (changed to 50 per cent the next year) as a condition for a representation vote to be conducted, and obliged every employee in the unit to vote in the representation election. It was by far the most intrusive scheme for trade unions.21 What was remarkable about the panoply of provincial compulsory collective bargaining regimes was not only the extent to which they deviated from the Wagner Act model, but the degree to which the federal Wartime Labour Relations Regulations deviated from them. The federal government’s order owed a great deal to the wartime trappings superimposed on the Wagner Act by executive order and by dictate of the War Labor Board in the US, especially the emphasis on industrial peace and union responsibility.22

The Canadian Compromise: PC 1003 True to form, King delayed the announcement of the order compelling collective bargaining as long as possible, unveiling it on 17 February 1944, the day before John Bracken was to announce the Progressive Conservative Party’s labour policy. PC 1003, the Wartime Labour Relations Regulations, came into effect on 20 March 1944. It was limited to federal and war-related industries, although it provided that the provinces could simply extend it to industries under their jurisdiction and that primary responsibility for the administration of the Regulations was left to them. The result was a patchwork of different systems and different administrative mechanisms across the country. Yet, despite the complexity of regimes and administrative mechanisms, the federal regulations dominated the labour relations field.23 PC 1003 established a paradigmatically Canadian model of compulsory collective bargaining, the key elements of which were incorporated by the federal government and the majority of provinces when legislative jurisdiction over labour relations reverted to normal. It was a unique amalgamation of three distinctive elements: compelling employers to bargain with unions, compelling conciliation, and compelling grievance arbitration. It emphasized formal equality in the protection of the rights of, and the imposition of duties on, employers and unions and depended a great deal on the exercise of discretion in its administration. The most outstanding feature of PC 1003 was the extent to which it restricted the use of industrial sanctions. Strikes were ‘rendered unlawful over jurisdictional issues, recognition issues, and application or interpretation issues. Only in the negotiations area were they left, and even then they were to be held in suspension during compulsory conciliation.’24

274

LABOUR BEFOR E THE LAW

The certification procedure and unfair labour practices, almost always administered by tripartite regional and national labour relations boards, were the components that made collective bargaining compulsory. Essentially, certification was the procedure through which the union demonstrated to the board that it had the support of the majority of employees within a defined constituency acceptable to the board. Once certified, the union’s bargaining representatives could call on the board’s assistance in compelling an employer to negotiate a collective agreement. Unlike the Wagner Act and some of the provincial statutes, PC 1003 did not require a representation vote in every instance; instead, a written request from the majority of the employees in the proposed bargaining unit could trigger automatic certification. However, like many other certification mechanisms, the Wartime Labour Relations Regulations granted a great deal of leeway to the board to determine both majority support and the appropriate bargaining constituency. Two features of the certification procedures attracted much criticism from organized labour. First, bargaining representatives, who were individuals either elected by employees or appointed by a union—and not trade unions—were to be certified. This feature, in addition to creating ambiguity regarding the status of trade unions, did not satisfy organized labour, which wanted the union itself to be certified. Second, the Regulations specifically recognized unaffiliated employee associations that were distinct from trade unions as acceptable bargaining representatives, although there was a requirement that they be free from employer control. Unions feared that unaffiliated employee committees would simply function as a Trojan horse for company unions. Moreover, they had reason to be suspicious given their experience under the Ontario Collective Bargaining Act.25 The compulsory conciliation procedure constituted the second distinctive feature of the Regulations—continuing the tradition initiated by the Industrial Disputes Investigation Act of coupling intervention by ad hoc tripartite boards with a ban on strikes and lockouts. PC 1003 formally incorporated a two-stage conciliation procedure, first by department officials, then by a tripartite board, and the ban on industrial action only subsided 14 days after the conciliation board reported to the minister. In addition, the order continued PC 7307, which required a strike vote as a prelude to a lawful strike. Compulsory conciliation not only delayed the point at which a union could resort to industrial sanctions, it also reinforced the idea that only certain strikes were lawful.26

RECOGNI TI ON AND RESPONSI B I L I T Y

275

The third distinctive element of PC 1003 was its emphasis on the collective agreement as the device for stabilizing labour-management relations. To ensure that an agreement actually promoted industrial peace and stability the Regulations required that it be for a period of not less than one year and imposed a ban on industrial action for its duration. The Regulations also mandated grievance arbitration by requiring every agreement to contain a provision establishing a procedure for the final and binding settlement, without stoppage of work, of all differences concerning its interpretation or violation. Once the collective agreement was made an instrument of public policy, the legal status of trade unions was also transformed. Although the Regulations provided that bargaining representatives and not trade unions were to be certified, trade unions were recognized as competent to enter into collective agreements. The Regulations also declared a trade union to be answerable for the offences it might commit. The legal recognition of trade unions tended to flow from their capacities and liabilities, rather than from a positive acknowledgement of their legitimacy.

The Truce: Union Recognition in Exchange for Industrial Peace The initial response of organized labour to PC 1003 was generally favourable. The TLC registered the most enthusiastic support; in its annual presentation to the cabinet it ‘complimented the Government for passing Order in Council PC 1003’ and expressed its appreciation for ‘the fact that consultation had taken place between the Minister of Labour and members of his Department, and officers of the Congress prior to the introduction of the order.’ The CCL, while it also expressed satisfaction with the consultative process, tempered its praise with criticisms, although the shortcomings did not deter it from giving conditional support to the no-strike pledge undertaken by many of its affiliates. The Canadian and Catholic Confederation of Labour required as a condition of its endorsement of PC 1003 that it make trade unions entities responsible under the law, and the CMA and the Chamber of Commerce shared this concern. The CMA’s outright antipathy to compulsory collective bargaining, however, gave way to grudging acceptance once PC 1003 was issued. It advised its members that the order was probably quite a good thing, since a general regime of collective bargaining might be expected to head off something worse—a continuation of extensive government intervention in the economy.27

276

LABOUR BEFOR E THE LAW

Cohen was the most vocal early critic of to him:

PC

1003. According

Labour was told in strained whispers of how horribly sick the government authorities would feel if they found themselves obliged to legislate on labour disputes in a way which involved compulsory arbitration. By playing on this chord, plus the usual quantum of cajolery and playing off one section against the other, a measure emerged, hailed with political trumpets, which doesn’t and can’t do the job at all. He identified seven main defects with the order, including the lack of remedial powers to enforce either the unfair labour practices or the duty to bargain in good faith and the ineffective prohibition of company unions. He also criticized its failure to deal with union security, noting that this issue would devolve to a ‘pot luck’ of ad hoc conciliation boards, and the imposition of legal responsibility on unions for infractions of the collective agreement. Cohen’s criticisms anticipated those subsequently levelled by unions against the Regulations.28 However, the immediate effect of PC 1003 was to channel unions to the new administrative apparatuses, where they sought to achieve formal recognition and thereby to compel employers to negotiate with them. The Wartime Labour Relations Regulations presented many unions with an opportunity to solidify their hold on key industries as a bulwark against employers’ attempts to use labour market turmoil during the postwar reconversion to rid their operations of them. Initially, it appeared that PC 1003 might be an effective means of achieving industrial peace and recapturing much of organized labour’s support for King’s Liberal government. In its first year, the number of working days lost because of strikes dropped dramatically, from the previous all-time high of 1,041,198 in 1943 to 490,139 in 1944. In part, this was due to labour’s support for the collective bargaining regulation, which the UAW, for example, had greeted with a resolution to restrict strike activity. But to a large extent labour peace was also the result of a shift in union attention to politics during the run-up to the federal election and the fragile entente that was in place on the wage front.29 As unions tried to use the Regulations to force employers to bargain with them they were met by employers determined to resist their demands. PC 1003’s muscle depended, to a great extent, on how the labour boards exercised their discretion. Although the National War Labour Relations Board dealt with only a fraction of the total cases brought under PC 1003, its decisions carried a great deal of weight.

RECOGNI TI ON AND RESPONSI B I L I T Y

277

Not only did it have regulatory and policy-making powers, but it could hear appeals from decisions of the regional boards. Responding to a request by the deputy minister of labour for a blanket endorsement of the federal government’s labour policy (in order to strengthen the government’s hand in upcoming negotiations with the provinces over jurisdiction), Percy Bengough, the TLC president and federal Liberal loyalist, questioned whether the TLC ‘would want to be recorded as being favourable to giving the Federal Government a blanket endorsement to take over . . . the activities mentioned.’ He stated that ‘[t]he operations of the Dominion Government in the fields of labour relations and minimum wages so far has not come up to expectation and while, on paper, they were accepted as a general improvement in actual operation they have ofttimes been a disappointment.’30 Much of the Canadian labour movement’s dissatisfaction with the Board’s administration centred on its failure to interpret the Regulations in a manner favourable to unions. Trade unions and employer associations split over the meaning the Board should attribute to the phrase ‘majority of employees affected’, which figured prominently in the certification procedure and hearkened back to the formula Mitchell used for determining support for employee associations in the Kirkland Lake dispute. The NWLRB interpreted it as meaning ‘absolute majority’, thereby requiring support for the union of over 50 per cent of all of the eligible employees before it would certify bargaining representatives in cases in which a representation vote was required. The Board’s position contrasted sharply with an earlier decision of the Labour Court under the Ontario Collective Bargaining Act and that of Jacob Finkelman, chair of the Ontario Board, which required unions to obtain only a majority of the votes cast.31 In cases in which a representation vote was required, the TLC favoured majority of votes cast as the rule for certification, condemning the formula adopted for establishing an ‘invidious distinction between political democracy and industrial democracy which is unwarranted’. Somewhat surprisingly, the Chamber of Commerce was also in favour of adopting the Ontario method for establishing majority support. On the other hand, the CMA strongly supported the Board’s interpretation that ‘majority of employees affected’ meant a majority of employees entitled to vote. It argued that a union should be required to demonstrate a high degree of support for certification since only a certified union was empowered to negotiate an agreement binding all the employees in a unit. The government did not amend the Regulations and the Board did not modify its interpretation.32

278

LABOUR BEFOR E THE LAW

The NWLRB also took a literal approach to the interpretation of the scope of the arbitration provision and once again its position was the same as that advocated by the CMA. The problem with this approach, according to Jacob Finkelman, head of the Ontario Labour Relations Board, was that: there may be issues between employers and employees during the currency of a collective agreement which cannot be dealt with by any of the machinery that has been set up under the Regulations. For example, if the parties fail to make provision with respect to a certain matter in an agreement, an employer may very well say that no justiciable issue has arisen. Even if the dispute was brought before us at some stage of the proceedings, we may well have to conclude that the matter does not constitute a misinterpretation or violation of the agreement. In such an event, there is no remedy through arbitration, and there is no remedy through a board of conciliation as was the case under the Industrial Disputes Investigation Act. Nevertheless, the employees are forbidden to strike. To remedy this inequality, Finkelman recommended that all disputes arising between employers and employees during the currency of a collective agreement should be referred to arbitration. And this is precisely what the Ontario Board did in its decision involving the UAW and Automotive Trim Company. However, when the employer appealed, the National Board reversed the Ontario decision, limiting the power to establish a grievance procedure to disputes concerning the interpretation or violation of a collective agreement. A senior official with the National Board warned that Finkelman’s proposal ‘would bring about a degree of compulsory arbitration (on new matters which could be stretched to relate to the terms of the agreement) not intended in PC 1003 and for which labour and management are not ready.’ While organized labour indicated its readiness to extend the scope of compulsory grievance arbitration to any dispute arising during the term of a collective agreement, the CMA made it very clear that it was opposed to any further infringement on management prerogatives.33 The National Board’s ruling regarding the scope of arbitration and the government’s refusal to amend the arbitration provisions gave the employer a decided advantage over the union, since disputes unforeseen at the conclusion of the collective agreement could be decided unilaterally by the employer. Compulsory arbitration did not cover such disputes, nor could a union resort to strike action to resist the employer because of the ban on industrial action while an agreement

RECOGNI TI ON AND RESPONSI B I L I T Y

279

was in effect. This interpretation helped to entrench managerial prerogatives over matters not covered by the collective agreement. Once PC 1003 was introduced, both the nature and the content of collective agreements changed. As grievance arbitration became a legally binding means of enforcing them, collective agreements grew longer and more formal. Lawyers advised employers of the need to obtain language that preserved their managerial prerogatives and banned strikes, and there was a marked increase in both management rights clauses and strike bans in collective agreements. The Regulations promoted a form of legalism in which workers’ rights were regarded as flowing from the collective agreement and not from their role in the social relations of production.34 As organized labour became more familiar with the operation of the Regulations, it identified what it perceived to be their fatal flaw— the failure to force the employer to conclude a collective agreement. The National Board rarely decided that the employer had failed to bargain in good faith except where the employer refused to meet with representatives of the employees. And even if it did, as anyone familiar with the experience of pre-existing Canadian collective bargaining legislation would have predicted, an enforcement mechanism that depended on the ordinary courts was almost completely ineffective in forcing an employer to enter into meaningful negotiations with a union. One year after PC 1003 was implemented, industry leaders, such as Ford, Stelco, the Wright-Hargreaves and Sylvanite mines in Kirkland Lake, Canada Bread, Westinghouse, Imperial Optical in Toronto, Electro-Metallurgical in Welland, and Halifax Shipyards, still refused to bargain with certified trade unions, and there was little the Board could, or would, do to stop such employers from flouting the Regulations.35 Some Liberals feared that organized labour’s dissatisfaction with the government’s collective bargaining policy could jeopardize the party’s electoral success. Allan MacLean, the national director of the National Liberal Federation, told Mitchell that: the central and burning grievance of the trade union movement against PC 1003 is that it imposes all the obligations and responsibilities of compulsory bargaining upon the trade union which secures certification as the bargaining agency of a group of workers, but it does not make it obligatory for management to negotiate an agreement with that union even after the Board has certified it as the bargaining agency. This, aside from all other considerations, tends to make PC 1003 a handicap to the workers and an obstacle

280

LABOUR BEFOR E THE LAW

in their fight for collective bargaining in cases where management follows a calculated policy based upon rejection of the intent of the Order. Paul Martin, Mitchell’s parliamentary assistant, conveyed the message to Arthur MacNamara, the deputy minister of labour, that organized labour wanted the NWLRB to be given the authority to impose a collective agreement in cases in which the employer refused to compromise. But employers opposed it and MacNamara, claiming that trade unions were not ready for compulsory arbitration, vetoed it. Thus, terms and conditions would continue to be resolved by economic contest and voluntarism was preserved at the core of the collective bargaining regime.36

Refining Industrial Pluralism When the war ended and the federal election was over, voluntary strike bans were lifted and unions resorted to their traditional economic weapon to achieve greater institutional security and industrywide wage increases from employers. Strikes, which took the form of industrial sieges, were fought across the country. In 1945, the number of working days lost to strikes climbed to 1,457,420, reaching 4,516,390 the following year—a mark unsurpassed for two decades. This wave of militance put the finishing touches to the new industrial pluralist regime of legality.37 Industrial unions pressed for three linked demands: union security, industry-wide bargaining, and wage increases. The first would strengthen the union’s presence in the workplace and it had two dimensions: control over the membership and financial stability. In Canada, few industrial unions had managed to obtain any form of security, whereas in the US, with the help of the National War Labor Board, maintenance of membership and the check-off were the norm. Unless the federal government could be persuaded to impose it, union security would have to be won in major strikes.38 Industry-wide bargaining was the way that the industrial unions intended to take wages out of competition. This demand ran in the face of the highly regionalized and fragmented labour market in Canada, which employers preferred and government policy supported. As a preliminary matter, this issue was decided by the NWLRB, since it had the exclusive authority to certify a bargaining representative for a group of workers. It developed rules for determining the appropriate bargaining structure, which erected hurdles for unions

RECOGNI TI ON AND RESPONSI B I L I T Y

281

seeking multi-employer, industry-wide bargaining. Thus, most unions could not insist on industry-wide bargaining as a matter of right; instead, they had to persuade employers, who generally preferred more fragmented structures, to agree to it voluntarily.39 Unions needed wage increases to ensure their members’ continued support. During the war, wages lagged behind price increases, creating a tremendous pressure against wage controls once the war ended. Employers were tempted to buy labour peace with wage increases and simply pass the costs on to consumers. The government exhorted the parties to hold the line on wages to avoid inflation, but it was not prepared to use coercion to enforce its controls. Although its jurisdiction began to wane at the end of the war, until 1947 the federal government was the key player in the labour relations field. It was at the forefront of developing compromises acceptable to both parties, deploying successive stages of conciliation and holding a tight rein on the use of coercion. Provincial governments had an important, albeit subsidiary, role to play; in Ontario and Quebec, for example, they were more willing than the federal government to engage in a direct show of coercion against striking workers and their unions. Provincial departments of labour were also involved in conciliation. When the provinces regained control over labour relations, regional factors tended to influence the content of collective bargaining legislation, although the federal wartime labour regulations established the general framework. Municipal authorities also contributed to the regime of legality since municipal police forces typically had the initial contact with striking workers, especially if the employer used strikebreakers. Union security was by far the most contentious issue in disputes between employers and unions. The refusal of employers to enter into collective agreements containing a union security provision was the crux of organized labour’s complaint that the duty to bargain in good faith did not ensure the conclusion of a collective agreement. To remedy this defect the TLC proposed that the Regulations be amended to require the employer to grant a union shop if the majority of employees in the unit so demanded. The CCL, while agreeing with the TLC about the importance of union security, advocated a more flexible solution. It recommended that the Regulations be amended to give the NWLRB the authority to order the inclusion of a union security clause in a collective agreement.40 By contrast, the CMA endorsed the status quo. It opposed union security provisions—union shop, membership maintenance, checkoff—as unwarranted and undemocratic interferences with individual

282

LABOUR BEFOR E THE LAW

liberty. Although most of its obloquy was directed at closed and union shops, the manufacturers’ association tarred the maintenanceof-membership provision with the same brush. It feared that the federal government would legislate a solution to the problem of union security. In Nova Scotia, unions had already secured the right to insist on a voluntary dues check-off and in Saskatchewan the CCF government had recently enacted labour legislation that included both a voluntary check-off and a mandatory membership maintenance clause. Stopping short of demanding their outright prohibition, the CMA recommended that the inclusion of maintenance-of-membership and check-off provisions within collective agreements should be a matter of negotiation between the employers and bargaining representatives, and not forced on employers by a labour relations board. At the same time, it urged its members not to sign agreements that provided any form of union security.41 NWLRB officials and federal bureaucrats shared the CMA’s position that union security should be voluntary. Justice G.B. O’Connor, chairman of the NWLRB, initially advised Mitchell that the issue of union security was properly a matter for the provinces. He later recommended that the government maintain its policy of ‘co-operation between employers and employees as opposed to compulsion’ on the grounds that he doubted ‘the advisability of changing this policy on the eve of an election’. Officials in the federal Labour Department echoed O’Connor’s advice. Union security ought to be obtained through voluntary agreement, not legal compulsion. The federal government heeded its advisers and refused to impose union security on a reluctant employer.42 It was, however, willing to manipulate the conciliation process to secure concessions from both sides so as to prevent a strike. Nowhere was this technique more apparent than over the issue of union security. Invariably, a succession of conciliators sought to resolve a dispute or, less frequently, one of the parties was subject to covert pressure to compromise. In the event that these techniques failed to achieve a settlement, the conciliation boards issued normative reports setting out what the parties should agree to. These reports built up a body of opinion that would set the pattern for both employers and employees on the union security issue. Conciliation boards, following the precedent established in the US by the War Labor Board, recommended a maintenance-of-membership clause as a compromise measure of union security. Even more often they urged the employer to accept a voluntary dues check-off under which each employee was required to make a written submission authorizing the deduction of

RECOGNI TI ON AND RESPONSI B I L I T Y

283

dues and their remission to the union. Nevertheless, a conciliation board’s recommendation did not guarantee that the employer would accept even a weak union security proposal. Since the federal government would not impose it, the issue of union security was fought on the picket lines.43 The first major strike directly over union security once the war ended was by Local 200 of the UAW at Ford’s Windsor operations. It set the tone of labour relations in the immediate postwar period and was an occasion for state actors and institutions to begin to define the parameters of legitimate coercion within the regime of industrial pluralist legality. The Ford strike established both the basis for entente between industrial unions and large employers over the issue of union security and a general pattern of state intervention that was followed in the wave of industry-wide strikes in 1946.44 During the long lead-up to the strike, the leaderships of the international, the national, and the local UAW were careful to stay within the bounds of legality. For 16 months Local 200 endured the twostage conciliation proceedings required under the federal labour regulations. The day the conciliation board report was made public, the local president ripped it up in front of 8,000 Ford workers and the company laid off 13 per cent of its 13,000 workforce in Windsor. On 12 September, 10,000 Ford workers began what was to become a 100-day strike. The local’s strategy was simple: it would shut down the plant by mass picketing, forcing either Wallace Campbell, Ford’s obdurate president, to compromise or the federal government to intervene and impose some form of union security. Community support for the strike was strong and militated against the use of repression, despite the desire of Ontario’s Conservative government for a show of force. Without some assistance in dealing with the mass pickets, Ford was not be able to maintain or operate the plant. The local and the national union leaders wanted the federal government to impose the terms of the agreement rather than enforce the private rights of the employer. However, the federal government refused either to use force or to impose a settlement, turning the strike into a battle of endurance. Mitchell did not want to establish a pattern of compulsory arbitration, nor was he prepared to appoint a controller, as he feared this was the first step down the road to nationalization. When he suggested that Ford accept a voluntary check-off as a compromise to end the strike, Campbell responded that if the government endorsed union security it should legislate it. Mitchell raised the spectre of Communist agitators and pointed to the similarities between the Ford situation and the Winnipeg General

284

LABOUR BEFOR E THE LAW

Strike of 1919. Some of his cabinet colleagues, together with members of the Ontario government, went so far as to prepare a ‘Winnipeg plan’. But a more restrained approach prevailed. By the end of October, Mitchell’s temper had cooled and he announced to the House of Commons a plan to settle the strike. Cabinet would appoint an umpire, whose decision would be treated as final and binding by the parties. In exchange, the union would remove the pickets and let the plant’s powerhouse open, and the company would call back the workers on the basis of their seniority without any discrimination. However, the union rejected this proposal since it did not guarantee it any form of security. Attempts by the three levels of government to deploy force to break the impasse backfired as they merely catalysed sympathy for the strikers. By November, however, the strike threatened to spread across the country, prompting the federal government and labour leaders to establish some basic rules of engagement. In exchange for the federal government’s refusal to send in troops to assist strikebreakers, George Burt of the UAW and Pat Conroy of the CCL agreed to confine trade union solidarity for the strike to financial support and eschewed sympathetic strike action. Federal politicians renewed their efforts at establishing a settlement. Paul Martin, who had recently been elected to Parliament to represent Windsor, tried to get the parties to submit the dispute to arbitration. He was aware that the choice of the arbitrator was the key to getting the union to accept binding arbitration and therefore recommended Ivan Rand, a Supreme Court of Canada justice with known pro-union sympathies. On 20 December, Labour Minister Humphrey Mitchell appointed Rand as the arbitrator and the workers returned to work. Rand’s analysis of what collective bargaining both assumed and entailed quickly became conventional wisdom and established industrial pluralism as official labour relations policy in Canada. His starting point was that ‘[a]ny modification of relations between the parties here concerned must be made within the framework of a society whose economic life has private enterprise as its dynamic.’ His second premise was that the federal government had accepted the need to protect workers’ right to form unions and engage in collective bargaining. According to Rand, unions needed to be strong in order to ‘secure industrial civilization within a framework of labour-employer constitutional law based on rational economic and social doctrine’. Another advantage of strong unions was that they would prevent Communist elements from taking hold within an enterprise. He also recognized that only secure unions would grow strong. But he was

RECOGNI TI ON AND RESPONSI B I L I T Y

285

not prepared to grant the union shop. Echoing the CMA’s arguments, he declared that it would ‘subject the company’s interest in the individual employee . . . to strife within the union’ and ‘deny the individual Canadian the right to seek work and to work independently of personal association with any organized group.’ He was willing, however, to order a compulsory dues check-off regardless of union membership, for it was equitable that each employee contribute to the expenses of the union since each benefited from the union’s representation. It could also be justified as promoting democracy: ‘The obligation to pay dues should tend to induce membership, and this in turn to promote that wider interest and control within the union which is the condition of progressive responsibility.’ In exchange for financial security, Rand imposed two conditions on the union. First, it was required to conduct a secret ballot of the employees it represented as a condition for engaging in lawful industrial action. This would ensure accountability to its members. Second, the union’s right to have the employer remit its dues depended on its fulfilling its responsibilities. Not only was it obliged to repudiate strikes that occurred while a collective agreement was in effect, but it was obliged to discipline members who participated in wildcats.45 The Rand formula, as the compulsory dues check-off came to be known, was a major breakthrough for unions. It also had fairly wide public support. A Gallup poll conducted in 1946 indicated that 52 per cent of the public thought that union dues in exchange for union wages was equitable, while only 33 per cent did not. Moreover, the Ford award’s emphasis on the union’s obligation to police the strike ban in the collective agreement in exchange for financial security gave employers a reason to accept it. It might also help to solve one of Mitchell’s biggest complaints: the greatest evil is the lack of recognition by unions of the inviolability of contracts with employers. If we could get labour leaders who would insist upon the recognition of such contracts we would have fewer strikes and a much more harmonious relationship between management and labour.46 Thus, there was a great potential for Rand’s award to become hegemonic. The award reinforced the distinctive features of PC 1003—its emphasis on industrial peace and legality. Mid-term strikes were also banned under the wartime regulations. Although wildcats were not a huge problem in 1945 and 1946, Ford had experienced several, and they had been a problem earlier in the war. But despite the fact that

286

LABOUR BEFOR E THE LAW

mid-term strikes were prohibited under PC 1003, the Wartime Labour Relations Board had refused to grant leave to prosecute unions or workers who participated in wildcats. The award, which hit the unions financially if they failed to live up to the peace obligation, might prove a more successful means of preventing illegal strikes. The beauty of the Rand formula from the federal government’s perspective was that it gave employers the tools to punish unions who violated the strike ban and did not require the state to intervene. Ever since the passage in 1907 of the Industrial Disputes Investigation Act, Mackenzie King had sought to restrict federal involvement in labour relations to conciliation. Except in times of emergency, such as war or apprehended insurrection, the federal government, especially under the Liberals, preferred to leave the use of coercion to either the parties or local authorities.47 This solution was not completely satisfactory to Harold Clawson, a management-side labour lawyer who later became head of industrial relations at Stelco. While he acknowledged the practical utility of providing penalties in the collective agreement, he emphasized the need for state sanctions to reinforce the regime of industrial legality. Writing in 1946, Clawson declared that it is: timely to assert that the pursuit of legality is becoming ever more important. Organized labour as an institution in society is no longer in its infancy and immature conduct cannot be condoned much longer. Realistic conciliation and expedient compromises have their place, but at some point in the development of labourmanagement relations we must begin to introduce greater respect for the law. He was particularly concerned that when primary jurisdiction over labour relations returned to the provinces they would drop the prohibition of strikes and lockouts during the term of an agreement from their collective bargaining legislation. He noted that already three provincial collective bargaining statutes did not impose such a ban on the use of industrial action.48 The auto union’s success at Ford occurred at about the same as the CIO unions in the US won their campaign of industry-wide strikes in auto, steel, rubber, and electrical goods for wage increases and union security, tipping the balance in favour of a common wage strategy among the leading unions in the CCL. The plan was to target specific industries for shutdown by strikes and use the wage increases and union security obtained in one sector to set the pattern for the next.49 For the plan to work, each union had to be able to shut down

RECOGNI TI ON AND RESPONSI B I L I T Y

287

production in its sector. To do this, however, a union needed a great deal of support, especially from its members and workers in the industry, but also from the residents of, and politicians in, the local community, as well as other unions. Such support was decisive in situations in which the employer was prepared to use strikebreakers to continue operating since the typical union response was mass picketing. The problem for unions was that mass picketing was (and still is) almost invariably unlawful. Thus, the crucial question was whether the employers would be able to persuade the public authorities to enforce their private property and contract rights. In large strikes, which required a great deal of force to disperse mass pickets, public opinion helped to shape the form of state intervention. The lesson of the Ford strike was that so long as unions had public support, state officials, especially those who were elected, would not be willing to use force to help employers to maintain operations in the face of mass picketing. In the majority of strikes in 1946, of which most were illegal, police and criminal prosecutions were used sparingly. The exception was the textile industry in Quebec, which had reverted to provincial rule, where Duplessis was relentless in his use of coercion to drive Communists out of the labour movement. However, the federal government consistently refused to use direct coercion against striking workers. In fact, after the Ford strike it showed greater willingness to appoint a controller to force the employer to compromise, going so far in the Canadian Seamen’s strike in the Great Lakes as to coerce a particularly recalcitrant employer to recognize the union. Yet, it consistently stopped short of legislating the terms of the settlement, preferring instead that a third party come up with an acceptable compromise.50 The real test of the CCL’s common wage front occurred in southern Ontario through the summer and fall of 1946 when the rubber, steel, and electrical workers’ unions began a series of strikes (Table 4). The rubber workers’ union took the lead. UE followed, but it was never as successful as its counterparts in co-ordinating a full-scale industrywide strike. One week later, 12,500 steelworkers in Ontario and Nova Scotia went on strike. The geographic centre of the common front was Hamilton, where 6,000 steelworkers, along with 1,500 rubber workers at Firestone and 4,000 workers at Westinghouse, were on strike, and it was at Stelco that the success of the unions’ strategy was decided.51 Stelco was the industry leader and it refused to recognize the United Steel Workers of America (USWA). It had resisted the application for certification by the steelworkers’ union, challenging the con-

288

LABOUR BEFORE THE LAW

The Communist-led Canadian Seamen’s Union faced tough employer opposition in the postwar era and was subsequently the target of state repression. (National Archives of Canada, PA93867. Reproduced courtesy of the Communist Party of Canada.)

stitutionality of the Ontario Collective Bargaining Act and the Labour Court.52 Although the USWA was certified under PC 1003 and it finally signed a collective agreement with Stelco in 1945, its security was precarious.

RECOGNI TI ON AND RESPONSI B I L I T Y

289

The federal government played an active role in the dispute since the steel industry had long been considered the wage pattern-setter. Just days before the strike was scheduled to begin, Ottawa appointed a controller for the steel industry and issued an Order-in-Council declaring the impending strike to be illegal and providing for substantial penalties for the union, its officials, and any workers if they went on strike. For a short while it looked as if the hardliners in the federal cabinet were prepared to invoke the ‘Winnipeg plan’, even though it had been foresworn earlier in Windsor during the Ford strike. Charles Millard complained that the union and its members were being denied British justice; the USWA’s careful regard for legality had simply provided Stelco with the time to prepare for the strike.53 Much like the Ford strike in Windsor, the community supported the union. This was important, since hundreds of picketers laid siege to the plant where about 1,000 strikebreakers had dug in. Contact between the strikebreakers and the picketers was minimal. Violence occasionally flared up when the company attempted either to bring in supplies or to get some steel out. But the mayor managed to persuade the other police commissioners that it was not necessary to enforce the law against the picketers and, thus, there was no need to call in reinforcements. When the strike was only two days old, King referred the dispute to the Parliamentary Standing Committee on Industrial Relations, where negotiations were conducted in front of all of the federal parties. Millard was the first person to testify at the hearings, where he emphasized the justice of the union’s demands for security and a sizeable wage increase. Stelco’s president, Hugh Hilton, tried the parliamentarians’ patience when he failed to appear. Later he complained that he had been trapped inside the steel plant by the illegal mass picketing. Hilton defended the company’s right to refuse to recognize the union and condemned the picketing. According to him, union security did not translate into industrial peace. He reviled the CIO’s ‘policy of coercion and violation of the law’, and urged the federal government to teach the union respect for law and order. While the parties continued to make offers and counter-offers in front of the Committee, another attempt to mediate the dispute failed. The hearings concluded in mid-August without a settlement having been reached and the federal government never enforced its order banning the strike.54 Towards the end of August the federal government tried to arrange a settlement, and eventually one was achieved. The steelworkers won an immediate wage increase of 13.5 cents an hour, to be followed by

290

LABOUR BEFOR E THE LAW

an additional five cents by the end of the year, a 44-hour week (instead of the 40 it demanded), and the Rand formula. Steelworkers at Stelco, Algoma, and Dosco ratified the agreement, and on 4 October, 81 days after the siege began, the union brought the picket lines down. The effect of the settlement was immediate and profound. It served as the basis for resolving the strikes in the rubber and electrical industries. Moreover, it indicated that the federal government was going to leave managing the transition to a free labour market to the parties; the Liberals did not use coercion to insist on adherence to the wage controls. The steel strike also confirmed that the federal government would not authorize the use of coercion to assist an employer who insisted on ignoring a union and operating with strikebreakers. Given that the union, its members, and their supporters were clearly interfering with Stelco’s private rights by mass picketing and sympathy action, the policing of the strike was surprisingly light. In 81 days, only 82 charges were laid against 53 people. It was obvious that violence only occurred when employers used strikebreakers. Under the aid to civil power legislation it was up to municipal authorities to call for police assistance. In communities in which there was a great deal of support for the workers and their union the employer could not count on local public authorities to use coercion to enforce their private rights. While the Ontario Conservative government was no friend of the industrial unions, urging the federal government to use military force to end the strikes in Windsor and Hamilton, when compared with Duplessis its recourse to coercion was both mild and unsuccessful.55

Fragmentation: The Return to Provincial Jurisdiction During the immediate postwar strikes, the federal government’s policy was to leave it to the parties to work out a settlement. It did not enforce wage controls, nor did it insist on a union’s strict regard for legality. Instead, it preferred conciliation or some form of third-party intervention to end strikes. This was in marked departure to its use of coercion at the end of World War I to deal with the massive industrial unrest. The nature of both the strikes and the demands, as well as the perceived legitimacy of unions and collective bargaining, differed in the two postwar waves of industrial unrest. The strikes after World War I were expressly political in nature and involved unions that could be vilified as foreign and subversive. In 1946, the majority of strikes were by unions that had already been certified under governmental legislation and their demands were of an economic variety. Moreover, after World War II it was much harder to portray workers

RECOGNI TI ON AND RESPONSI B I L I T Y

291

The growing importance of legality in postwar Canadian industrial relations is illustrated by the placards carried by striking Montreal tavern waiters. (National Archives of Canada, PA80753.)

who participated in the war effort as ‘dangerous foreigners’ simply because they were not of British origin. Unions were accepted as legitimate industrial actors by the majority of the public. Compulsory union recognition and collective bargaining were now articles of official federal policy and some major employers had already learned to live with unions. While similar techniques, such as mass picketing and sympathy action, were used in both strike waves, recalcitrant employers and pro-business newspapers after World War II were unable to mobilize a climate of opinion in which the use of state force could be justified.56 Industrial unions made some important breakthroughs during the postwar strike wave. First, although it was initially resisted by many employers and some conciliators, the Rand formula soon became the hegemonic form of security. Second, the steel strike broke the back of the federal wage controls. Workers who were fortunate enough to be members of industrial unions began to see their real wages rise. Third, the postwar strike wave established pattern bargaining in the leading sectors of the Canadian economy (Table 4). This was a major accomplishment; prior to the war the vast majority of collective bargaining took place at the level of the individual employer or workplace.57 In 1946, steel, rubber, auto, seamen’s, electrical, and woodworkers unions won what were in effect industry-wide collective agreements; in 1947 a similar result was achieved in meat-packing, mining in Noranda, and Nova Scotia coal. But the CIO unions were not able to

292

LABOUR BEFOR E THE LAW

Table 4 Major Postwar Strikes in Canada, 1945–1948 Workers Involved Days Lost

Industry

Province Date

Logging/lumber

BC Ontario

14 May-26 June 1946 38,000 11 Oct.-4 Nov. 1946 6,000

600,000 50,000

Metal mining

BC

3 July-11 Nov. 1946

2,070

149,000

Coal-mining

Alberta NS/NB

26-7 June 1946 6,500 31 Jan.-4 Feb. 1947 14,500 11 Feb.-26 May 1947 14,919 27 May-11 June 1947 14,167 13 Jan.-31 July 1948 9,000

6,500 30,750 1,121,000 160,000 289,000

Auto plants

Ontario Ontario

12 Sept.-29 Dec. 1945 17,000 8 June-21 Oct. 1946 3,440 4 July-1 Nov. 1948 2,589

1,070,000 267,000 163,000

Rubber

Ontario

23 June-28 Oct. 1946

Electrical

Ontario

10,146

800,000

5 July-1 Nov. 1946

6,271

432,000

Steel

Ontario/ 14 July-3 Oct. 1946 NS

12,496

700,000

Textiles

Quebec Quebec

5,253 6,020

321,000 40,000

Meat-packing

National 27 Aug.-24 Oct. 1947 13,796

461,500

Merchant Marine

Ontario/ 24 May-22 June 1946 Quebec

2,500

50,000

Street railways

BC

2,873

64,000

1 June-9 Sept. 1946 3-11 Nov. 1947

20 Oct.-18 Nov. 1947

SOURCE: Stuart Jamieson, Times of Trouble: Labour Unrest and Industrial Conflict in Canada, 1900–1966 (Ottawa, 1968), 298.

achieve a broader cross-industry pattern; the common wage front was quickly abandoned for industry-based settlements. In fact, industrywide bargaining itself was based on power rather than on right. Most certifications were granted on a workplace and employer basis; there were few multi-employer or multi-location certificates. As the International Typographical Union discovered in its three-year struggle for chain-wide recognition from Southam, the newspaper company, PC 1003 favoured a much less centralized form of bargaining. Where unions were strong enough, they could target a particular employer

RECOGNI TI ON AND RESPONSI B I L I T Y

293

for a strike and then use that settlement as the pattern throughout the industry. But they had no legal right to insist, in the face of an employer’s opposition, that bargaining occur at that level.58 The experience of unions in Canada during the immediate postwar period differed remarkably from that of their counterparts in the US. The compromise over union security that had been fashioned during the war by the US National War Labor Board, which was adopted by Justice Rand to settle the Ford strike, did not survive the war. ‘Maintenance of membership clauses virtually disappeared in the postwar era, and the closed shop was explicitly prohibited by the Taft-Hartley Act of 1947.’ In Canada, although union security was institutionalized later, it proved to be more resilient. By contrast, industry-wide bargaining, which had its origins in the National Industrial Recovery Act and survived both the Wagner Act and its wartime embellishments, was much more firmly institutionalized in the US than in Canada. In part, this was because of the different constitutional divisions of power over labour relations in the two countries. In the US, collective bargaining was primarily a federal matter, whereas in Canada it was predominantly provincial, which created a barrier to national bargaining structures that could be legally enforced. Moreover, in Canada maintaining regional wage differentials was an explicit policy of federal and provincial governments.59 In 1947 the number of workers involved in strikes dropped by a third from the high of the preceding year and the number of hours lost dropped by a half. Having navigated the crest of the unrest in 1946, the federal government simply stayed its course. It continued to use multiple layers of third-party intervention, which typically took the form of some sort of conciliation board, commission, or inquiry, and eschewed direct coercion. Both under the Wartime Labour Relations Regulations and, after the return of legislative authority over labour relations to the provinces, in those jurisdictions in which a labour board retained the power to determine whether or not violations of the collective bargaining legislation should be prosecuted, boards, by and large, refused to grant leave to prosecute either unions or employers for violating the collective bargaining law. This was also the case when the statutory regime separated the administration of the collective bargaining legislation, which was the jurisdiction of the labour board, from its enforcement by granting the authority over prosecution to the Minister of Labour. The use of prosecutions to ensure adherence to the collective bargaining legislation tended to politicize the dispute. When the British Columbia government initially began aggressively to prosecute striking workers and their unions for violating its 1947

294

LABOUR BEFOR E THE LAW

Industrial Conciliation and Arbitration Act, judges and magistrates condemned the cumbersome legislation and few of the prosecutions were successful. After the 1948 amendments to the legislation, the government gave up the controversial practice of prosecuting violations, preferring instead to let the parties, especially employers, seek redress through the courts.60 In October 1946 the federal and provincial ministers of labour met to discuss the content of labour policy and which level of government had authority over policy when the transition to peace was complete. While there was unanimity on the need for uniformity in labour relations policy, Quebec, Ontario, and British Columbia insisted on the return of jurisdiction. Only the trade union congresses pushed for a national labour code. In the past the federal Liberals had been quite willing to cede jurisdiction over labour relations to the provinces and they had no interest in embarking on the difficult task of negotiating an amendment to the constitution to secure an authority they did not really want. In the end, the ministers agreed that jurisdiction over labour relations would revert to the provinces, but they also undertook to try to follow a common collective bargaining model.61 Beginning early in 1947, the federal government introduced a number of amendments to PC 1003 to smooth the transition to provincial jurisdiction. In July, it referred draft legislation to the House of Commons Standing Committee on Industrial Relations. That Committee held public hearings; however, only national unions, not locals, were allowed to participate. The CCL and TLC wanted a liberalization of the certification process, stricter prohibitions on company unions, recognition of unions as bargaining agents instead of only individuals, a mandatory dues check-off, and the elimination of lawyers and legalism. Both the CMA and the Chamber of Commerce opposed any form of legislated union security and broader remedial powers for the labour relations board. They favoured the courts. The CMA insisted on union responsibility and the reassertion of managerial prerogatives; not only did it want liability imposed on the union directly, it also wanted any new legislation to prohibit mass picketing, sympathy strikes, and secondary boycotts and any activities intended to limit or restrict production. When the parliamentary session was terminated, the bill was reintroduced in 1948. It excluded members of certain professions, managers, and confidential employees, as well as all government workers, from its scope; provided for certification, not of individuals, but of the union itself; relied on membership evidence, to be supplemented by a representation vote if necessary, to determine majority support; denied certification to an employee organization

RECOGNI TI ON AND RESPONSI B I L I T Y

295

dominated by the employer; gave employers a veto against multiemployer (or industry-wide) bargaining; reduced the ‘cooling off’ period by tightening the conciliation process; postponed the taking of strike votes until the conciliation process expired; prohibited employers from altering working condition during negotiations; and separated the administrative function of the board from enforcement proceedings by requiring the minister to give consent to prosecute. Several changes were made in committee, only one of which, a modest check-off proposal, was defeated in the parliamentary vote.62 The Industrial Relations and Disputes Investigation Act came into effect in September 1948. It served as a model for the majority of the provinces, although its key features were filtered through each province’s distinctive regional political economy. This resulted in some marked variations from the federal model. Initially, both Quebec and Saskatchewan retained the collective bargaining legislation enacted during the war. The Saskatchewan statute was unique in its lack of restrictions on a union’s exercise of its collective power. In Alberta and, later, Quebec, the provincial governments became preoccupied with communism, trade union militance, and labour unrest, amending their collective bargaining legislation severely to restrict trade union power. From organized labour’s point of view, the most disturbing postwar legal development was the willingness of conservative provincial governments to enact restrictions on the exercise of workers’ collective power without imposing equivalent constraints on managerial prerogatives.63 British Columbia saw the greatest amount of such legislative activity, prompted by employers who were outraged by the illegal strikes of 1946. Walter S. Owen, a prominent employer lawyer who was appointed Lieutenant-Governor in 1947, proclaimed that it was ‘essential to drive relentlessly’ towards the imposition of financial and legal responsibility on trade unions for illegal strikes as a quid pro quo for the legal requirement on employers to deal with a certified union. He also advocated restrictions on the timing of strike votes, claiming that such a vote prior to negotiations ‘is tantamount to approaching the conciliation table with a loaded gun pointed at the employers.’64 British Columbia employers were successful in obtaining many of their legislative demands. They hailed the passage of the new bill as a ‘long step forward in the field of labour legislation’ since it provided stiff penalties for union activity during working hours, restricting production, refusing to co-operate with a labour board order, and illegal strikes and lockouts. However, the government’s attempts to

296

LABOUR BEFOR E THE LAW

prosecute strikers and their unions were both controversial and unsuccessful, prompting it to amend the legislation. While not as draconian as the anti-Communist provisions of the Taft-Hartley Act for which the BC employers had lobbied (and Quebec employers had won), the anti-union tenor was by far the predominant feature of the 1948 amendments. Unions were wrapped in a straitjacket of legality—any violation of the multitude of restrictions on collective action both threatened a union’s legal status to insist on recognition and left it open to costly civil actions.65 The beauty of the BC legislation, from the provincial government’s perspective, was that it shifted the initiation of coercion away from itself and onto the parties, primarily employers. It also shifted the location of the debate about the legitimacy of coercion away from the political arena into the judicial one, since it was up to the courts to decide whether the union was liable to the employer for any damages caused by the breach of the collective bargaining statute or collective agreement. The British Columbia technique of restricting collective action stood in marked contrast to those provisions of the Ontario Collective Bargaining Act of 1943 that survived the legislation’s repeal through incorporation in the Rights of Labour Act. This statute protected trade unions against attempts by employers to use compulsory collective bargaining legislation to impose civil liability on trade unions by making it clear that a trade union was not a legal entity for the purposes of civil litigation and that a collective agreement was not legally enforceable in the ordinary courts. Moreover, by declaring that a union was not unlawful simply because it was in restraint of trade and by largely repealing the doctrine of civil conspiracy to injure, the Rights of Labour Act limited the scope for courts to grant anti-union injunctions. Only Saskatchewan followed this legislative precedent. In most jurisdictions across Canada, the questions of a trade union’s civil liability and the enforceablity of collective agreements in the ordinary courts remained as controversial, and tricky, as they were at the beginning of the century.66 At the war’s end, the courts once again became the pre-eminent forum for dealing with picketing. Beginning in 1946, there was a flurry of actions for injunctions and damages against trade unions for strikes and picketing action. The strike by the International Typographical Union against the Province newspaper in British Columbia was the first major postwar injunction case in Canada. Twelve picketers were convicted of the Criminal Code offence of watching and besetting and six local ITU leaders were assessed civil damages of $10,000 for interrupting the newspaper’s publication. The 1948

RECOGNI TI ON AND RESPONSI B I L I T Y

297

amendments to BC’s Industrial Conciliation and Arbitration Act ushered in the heyday of the labour injunction, which was used as a ‘sword of collective bargaining’ rather than a ‘shield of legal rights’. And while the BC legislation created a strong impetus for the use of civil actions to tame trade unions, the existing common-law and Criminal Code provisions continued to provide effective legal mechanisms for restricting traditional strike-related tactics in other jurisdictions. Courts were just as likely in Ontario as they were in BC to find that mass picketing was an illegal form of watching and besetting.67 The transition to peace brought the role of the courts to the fore not only in restricting strike-related tactics, but also in determining the powers that labour relations boards could exercise. In Nova Scotia, the province’s Supreme Court overruled the NWLRB and denied fishers’ collective bargaining rights under PC 1003. In Saskatchewan, where the CCF government had enacted legislation that was by far the most favourable to trade unions, as early as 1946 the courts began to read down legislation and overturn board decisions, prefiguring what would become a see-saw vendetta between the courts, on the one hand, and the legislature and the board, on the other, over which legal entity had the final say over collective bargaining jurisprudence.68

Conclusion The federal government’s reconversion strategies were both remarkably successful and highly conservative; by shifting slightly to the left, the Liberals could provide social security out of the dividends of private enterprise. King recognized that it was possible to head off the CCF by co-opting its support. On the whole, the dominant players within the TLC and CCL were more conservative than the CCF. Union leaders were chiefly concerned with the amelioration of working conditions, which they identified with obtaining collective bargaining legislation, securing better wages, and avoiding a return to Depression conditions. In fact, a national survey conducted in 1943 by an advertising firm for a large private corporation indicated that trade union leaders were less likely to support the nationalization of private enterprise than were members of the general public, of whom close to a majority thought it was a good idea. The CCF began to adopt a more moderate political direction as it began to lay greater stress on the immediate problem of winning elections. Instead of calling for an economic transformation, it emphasized the need for the state to provide a welfare package and to regulate the worst excesses of unbridled capitalism.69

298

LABOUR BEFOR E THE LAW

Politically, the 1945 election marked the dominance of the Liberal Party federally for the next decade. The social welfare net the Liberals established was porous, since it depended on exports, which were vulnerable to changes in the world market. The industrial relations mechanisms, later identified as Fordist since they were best exemplified in the automotive industry, were also permeable since the collective bargaining regime was highly fragmented and confined to key economic sectors. Institutionally, the postwar reconversion period confirmed the importance of the massively expanded federal bureaucracy, especially the senior mandarins located in the finance-related departments. Technical rather than democratic solutions to political and economic problems would dominate federal policy development. Economically, free enterprisers, such as Howe, would have their way and state intervention would be limited to smoothing out disruptions resulting from Canada’s incorporation in the world economy. By and large, the labour movement did not contest the Liberal vision of postwar Canada, although there were some pockets of resistance. In 1943, the CCL proclaimed before the House of Commons Reconstruction and Re-establishment Committee that ‘free enterprise’ no longer performed its historic function and ‘a considerable sector’ of the economy ought therefore to be placed under public control. But, by 1946, even this rhetoric had moderated. The TLC quickly reverted to a position that did not criticize the established order, although it continued to press for better wages and conditions for its members. Although the CCL and TLC officially backed different electoral parties, politically they were moving closer together. The rivalry between the CCF and Communist Party for influence within the labour movement was heightened by the Cold War ideology of the postwar period. Red-baiting and Communist-bashing came to the fore with the Gouzenko revelations in 1946, and the CCL, and to a lesser extent the TLC, attempted to purge the labour movement of Communist elements. According to federal bureaucrats, in Canada there was no need to impose a measure similar to that contained in the US Taft-Hartley Act (and enacted in Quebec in 1948) requiring union leaders to disavow any connection with the Communist Party. CCL unions were willing and able to cleanse the union movement of Communists. Respectable unionists’ desire to differentiate themselves from irresponsible political subversives during the Cold War also tempered labour’s position on the need for public ownership and workers’ involvement in industry. In this context, ‘the CCL’s denunciation of capitalism gave way to anodyne calls for labourmanagement co-operation.’70

RECOGNI TI ON AND RESPONSI B I L I T Y

299

The social vision of the majority of trade unions was limited to securing an occupationally based welfare structure for male workers. Although the CCL initially called for special programs, such as maternity benefits and day care, for women workers, this dropped from its agenda after 1945. In part, this was fuelled by the Congress’s determination to embrace the conventional emblems of respectability, such as the patriarchal family and a feminine version of womanhood, in order to distance itself from the ‘reds’. Most trade unions did not challenge the recomposition of Canada’s highly gendered and deeply segmented labour market; in fact, they tended to support it. In general, unionists endorsed the conservative and patriarchal model of the male breadwinner family in which women were positioned as economic subordinates whose primary (if not exclusive) role was domestic.71 The provision of collective bargaining rights served to satisfy unions’ immediate political demands. Their legitimacy as industrial actors who had a right to insist on bargaining with employers was accepted by the federal government. Legal restrictions on employers’ freedoms were a distinctive feature of the regime of industrial legality that emerged at the end of World War II. In this sense it was pluralist; it supported a specific role for unions and forced employers to recognize them for the purpose of collective bargaining. However, it remained voluntarist in two senses. First, it was premised on the understanding that, in the main, the private decisions of the owners of capital would both create employment opportunities and determine the country’s industrial structure. Nationalization of private enterprise and corporatist political structures were not on the postwar agenda. Second, since the actual outcomes of the collective bargaining process continued to depend on economic power, as opposed to administrative or political decisions, the system continued to be based on the private ordering of market forces. By the end of the postwar strike wave there was a general, though still contested, consensus on a labour relations regime based on pluralism and voluntarism. While some of the most powerful unions were able to achieve industry-wide wage rates and financial security in the postwar period, the Wartime Labour Relations Regulations tended to entrench a fragmented collective bargaining structure that confined trade unions’ economic power to the individual workplace. When primary jurisdiction over collective bargaining was returned to the provinces in 1948, this fragmented bargaining structure proved even harder to challenge. The Canadian collective bargaining regime tended to reinforce and entrench localism in the labour market.

300

LABOUR BEFOR E THE LAW

What was distinctive about the Canadian compulsory collective bargaining regime was the extent to which it substituted the rule of law for economic power. PC 1003 and its progeny restricted the use of the strike weapon to the negotiation of collective agreements. Moreover, as the quid pro quo for their institutional security, unions were to behave responsibly, ensuring that their members abided by the collective agreement and the ban on recourse to industrial sanctions during its operation. The inviolability of the collective agreement became the means of ensuring continuous production and the defining feature of responsibility for trade unions. In exchange for the assurance of peace for the duration of the collective agreement, PC 1003 elevated the private dispute resolution mechanism of grievance arbitration to a principle of labour relations policy. The formal restrictions on the use of economic action, plus binding grievance arbitration, resulted in the introduction of management’s rights into the legal framework of postwar collective bargaining. This development aided employers at the expense of trade unions, for it created a sphere of management prerogatives that were virtually impervious to successful challenge. PC 1003 institutionalized employee participation and the rule of law into workplace relations, but only on a limited range of issues in a limited number of circumstances. The emphasis on legality and responsibility in exchange for recognition in the legislation and its administration combined with the antiCommunist backlash to exert an important influence on both the structure and goals of trade unions. Unions were treated as quasicorporate institutions distinct from their membership with a responsibility to suppress any sign of spontaneous militancy. Their continued recognition depended on their ability to administer the collective agreement and guarantee industrial peace. After the introduction of PC 1003, there was a dramatic decline in the number of illegal strikes. Once a contract was signed, centralized unions, such as the UAW and United Steel Workers, found themselves ‘anxious to suppress the rank-and-file participation [they] had encouraged’. PC 1003 ‘tended to foster a legalistic practice and consciousness in which union rights appeared as privileges bestowed by the state rather than democratic freedoms won and to be defended by collective struggle.’72 The postwar industrial pluralist regime of legality did not radically alter the balance of power to make it easier for unions to obtain agreements or constrain managerial prerogatives. However, it did bestow on industrial unions the imprimatur of legitimacy and restricted employers from using their market power against workers who simply wanted to participate in unions and engage in collective bargaining.

RECOGNI TI ON AND RESPONSI B I L I T Y

301

1003 and its legislative progeny underwrote the gains made by organized labour through the exercise of its economic power during the war, but in doing so it channelled that power to minimize its potential to disrupt production. In theory, Canadian collective bargaining legislation provided that if a trade union won the majority support of relevant employees it could force the employer to bargain with it; however, in practice, the extent to which a certified union actually encroached on the traditional prerogatives of management continued to depend on the relative economic strength of the parties. Thus, voluntarism and market coercion continued to remain at the core of the regime of industrial legality.

PC

11

The Hegemony of Industrial Pluralism

In 1947, Bora Laskin remarked that ‘ “Labour relations” as a matter for legal study has outgrown any confinement to a section of the law of torts or to a corner of the criminal law. Similarly, and from another standpoint, it has burst the narrow bounds of the law of master and servant.’ That standpoint was industrial pluralism, and its regime of industrial legality had, according to Laskin, superseded the ‘traditional legal categories’. The essential components of that regime comprised collective bargaining legislation administered by independent labour boards and a system of grievance arbitration to enforce collective agreements. By 1950, the ideology and practice of industrial pluralism had become hegemonic; everything that had come before it was treated as pre-history, hardly worthy of attention. To avoid the common law’s traditional bias in favour of employers’ private rights, new administrative apparatuses were established and a new generation of labour relations professionals was educated by industrial pluralists to be sympathetic to modern collective bargaining legislation. By substituting legal right for industrial might as the means for requiring employers to recognize and bargain with their unions, collective bargaining law, according to Laskin, ‘worked a revolution in employeremployee relations’. It marked a rupture from the individualism of the common law and the absolutism of property rights.1 Laskin’s claims were more than those of a prescient observer; he was a central advocate for and participant in the industrial pluralist project. Indeed, his legal career exemplifies the nature and extent of that revolution. Beginning with his criticisms of the tenets of liberal voluntarism as propounded by the courts, first published in a series of articles when he was a graduate student at Harvard in 1937 (the year 302

THE HEGEM ONY OF I NDUSTRI AL PLUR A L I S M

303

the Wagner Act was introduced), through his tenure as a law professor and arbitrator from the late 1940s to the early 1960s, Laskin articulated and elaborated the principles of industrial pluralism. In what is one of the most frequently cited passages from his more than 130 arbitration awards, he asserted that: ‘The introduction of a Collective Bargaining regime involves the acceptance by parties of assumptions which are entirely alien to an era of individual bargaining.’2 Once elevated to the Ontario Court of Appeal in 1963, he was able to provide this new arbitral jurisprudence, which he had been instrumental in developing, with the stamp of judicial authority. In 1967, he proclaimed: Matters familiar in a master and servant context have taken on different dimensions under collective agreements. . . . What are generically called seniority and discharge clauses represent the employees’ charter of employment security; and it is reinforced by removing from the employer, not his initiative in acting against an employee, but his previously unreviewable right to rid himself of employees, even if it cost money damages to do so. As Chief Justice of the Supreme Court of Canada he continued to promote and to defend industrial pluralism.3 Laskin’s belief in the value of this new regime of industrial legality was at least partially justified by its results. Seniority and just-cause provisions in collective agreements, in addition to the reinstatement power of arbitrators, placed real constraints on managerial prerogatives and increased the employment security of individual employees. Grievance arbitration provided unions with a legal mechanism for enforcing their collective agreement rights and protecting their members from arbitrary employer behaviour. Arbitrators came to play an increasingly important role in articulating the role of collective agreements and the responsibilities of the parties. In Laskin’s assessment, grievance arbitration as the mechanism for enforcing a collective agreement was a big step forward from ‘ “lawless” enforcement by strikes and picketing’. It brought the rule of law to the resolution of workplace disputes. Along with the wage increases and fringe benefits the union was able to bargain, these were the tangible benefits that industrial pluralism offered workers.4 From organized labour’s perspective, industrial pluralism was a dramatic victory. Industrial unionism was firmly established in the leading sectors of the Canadian economy, where pattern bargaining had been secured. In the decade following the end of World War II, trade union membership increased from 24.2 per cent of the nonagricultural workforce to 33.7 per cent. With increased union

304

LABOUR BEFOR E THE LAW

strength came significant rises in real wages, which were largely achieved through a form of productivity sharing, pioneered in the automotive industry, whereby annual wage increases were pegged to increases in efficiency. Fringe benefits, such as pensions, paid holidays, shorter workweeks, sick pay, and disability insurance began to emerge in the leading sectors as standard features in collective agreements. Seniority became the most important factor for distributing job-related benefits.5 But while grievance arbitration brought the rule of law to the workplace it also centralized dispute resolution in the union hierarchy, at the expense of the work group, by providing the institutional framework for the bureaucratization and routinization of dispute resolution. A different kind of union leader from that of a militant organizer was needed to be effective in this system. It also ‘fit a voluntarist, contractual model of industrial relations in which disputes could be settled without apparent government involvement.’Although legally required, grievance arbitration was a form of private dispute resolution. It also tended to preserve a core of managerial prerogatives at the heart of industrial pluralism that operated to the advantage of employers. These features shaped, and limited, the pluralist conception of industrial democracy.6 With labour’s new entitlements also came new obligations. Laskin saw the need to fix ‘the union with its proper share of responsibility for the smooth functioning of the production of the enterprise under the collective agreement governing its operations’. This is precisely what he did in his highly influential arbitration award in Polymer; he held that a union was under a legal duty to fulfil its obligations under a collective agreement. The prohibition against strikes during the collective agreement entailed that the union had a responsibility to use every reasonable means, including disciplining its members, to ensure that conflicts and disputes were resolved through the grievance process rather than by recourse to industrial action. In a follow-up decision (which was upheld by the Supreme Court of Canada), Laskin ruled that as arbitrator he had the power to force the union to pay damages for any harm that resulted to the employer from the breach of the strike ban.7 Laskin’s elaboration of the obligations owed by unions to employers to ensure labour peace during the operation of a collective agreement was based on the logic of Justice Rand’s award in the 1945 Ford dispute, which made the union’s right to financial security dependent on its willingness to enforce its collective agreement against its members. Since a union was legally responsible for ensuring the integrity

THE HEGEM ONY OF I NDUSTRI AL PLUR A L I S M

305

of a collective agreement, employers were finally able to secure what they had long demanded—trade union liability for actions by their members. And while trade unions had long attempted, and mostly managed, to escape such liability, once legislation provided them with the right to be recognized by and bargain with employers and enforce collective agreements, the obligation to behave responsibly was the quid pro quo. The core of union responsibility centred on how a union exercised its collective power. Pat Conroy, the secretary-treasurer of the CCL and the epitome of a responsible trade unionist, understood this very clearly. In his testimony before the Parliamentary Standing Committee on Industrial Relations to which the 1946 steel dispute had been referred, Conroy argued that there were significant benefits to be reaped by everyone from recognizing labour’s role in society. Unions would bring order to production. He assured the Committee that ‘labour is willing to assume its full measure of responsibility, once this country decides that it is entitled to the equal voice that its investment justifies. Labour aspires to full citizenship. Make us industrial citizens, and you may expect us then to behave accordingly.’8 Responsible unions were the only legitimate representatives of workers within the pluralist version of industrial democracy. Responsibility was defined along several dimensions. In economic terms, it meant that the union and its leadership accepted the legitimacy of private property and free enterprise. Politically, it meant a commitment to constitutionalism and electoral change; strikes for political purposes were simply unacceptable. In the context of industrial relations it meant that the union accepted the integrity of the collective agreement and would make all reasonable efforts to prevent wildcat strikes. For these reasons, industrial pluralism tended to favour certain kinds of unions over others. While collective bargaining legislation was compatible with craft unionism of the TLC variety, it was specifically designed for industrial unions affiliated with the CIO. Moreover, Communist-dominated or -sympathetic unions were considered by those who endorsed industrial pluralism to be beyond the pale. By 1950, with a little assistance from the federal government and some labour boards, both the TLC and CCL leaderships had either purged or sidelined their more radical counterparts.9 Industrial citizenship, which comprised the freedom of association, the right to representation, and the rule of law, was the crowning achievement of industrial pluralism. But the claim that collective bargaining legislation ‘worked a revolution in employer-employee relations’ was only partially true.10 Instead of replacing the regimes

306

LABOUR BEFOR E THE LAW

of liberal and industrial voluntarism, industrial pluralism was grafted onto them. While collective bargaining legislation translated workers’ legal privilege to join a trade union into a legal right (with a concomitant restriction on the employer’s right to dismiss an employee for joining a union), it did nothing to relieve workers from restrictions on their freedom to act collectively. Employers were still free to exercise their property rights and freedom to contract, and to seek to enforce them in the courts. Nor did the legislation impose a collective agreement in order to resolve a dispute. The privilege to resort to industrial sanctions—the ultimate measure of bargaining power— continued to determine the contents of collective agreements. In these respects, the industrial pluralist regime of legality was still liberal voluntarist at its core. Employers could still use old-style coercion to enforce their traditional common-law rights. But they first had to persuade a number of state officials, from the courts to the police, to recognize those rights. Judges were predisposed to the common law’s traditional emphasis on respect for individual property rights and the freedom to contract. After World War II, the use of injunctions in labour disputes surged once employers rediscovered how effective they could be in limiting workers’ collective action. The criminal law also remained a means of controlling unruly behaviour during strikes. Police assistance, depending on local officials, was available to enforce court orders and public order. By the mid-1960s, the willingness of courts to issue injunctions to restrict workers’ collective action threatened the legitimacy of the industrial pluralist regime. Workers refused to obey the rule of law, and strikes, especially wildcats, dramatically increased.11 Thus, despite the emphasis of industrial pluralism on the need for specialized tribunals, in part to isolate collective bargaining and trade unions from the common-law courts, the judiciary continued to play a prominent role in the regime of legality. While there were strong supporters of industrial pluralism among judges (Ivan Rand and Bora Laskin, who both rose to the Supreme Court of Canada, are the two most prominent examples), the majority were committed to the individualism and traditional contract and property rights recognized by the common law. This predilection is obvious in the Ontario Court of Appeal’s 1963 decision in Hersees of Woodstock v. Goldstein, a much cited case concerning peaceful secondary picketing. In this decision, Justice J.B. Aylesworth, who was counsel for the big three automakers during the hearings on Ontario’s first collective bargaining legislation in 1943, issued a ringing judicial affirmation of liberal voluntarism, the same year that Bora Laskin, who represented the

THE HEGEM ONY OF I NDUSTRI AL PLUR A L I S M

307

car manufacturers’ nemesis, the Canadian Congress of Labour, at those hearings, joined him on the bench. Aylesworth declared that secondary picketing, even if peaceful, was a civil wrong that could be enjoined: the right, if there be such a right, of the [union officials] to engage in secondary picketing of appellant’s premises must give way to appellant’s right to trade; the former, assuming it to be a legal right, is exercised for the benefit of a particular class only while the latter is a right far more fundamental and of greater importance, in my view, as one in which its exercise affects and is for the benefit of the community at large.12 Courts were also responsible for deciding whether or not a specific statutory tribunal had overstepped its authority. As far back as the mid-1940s, the principles of natural justice and jurisdictional control, which were devised and applied by the common-law courts, were invoked, mostly by employers, to limit the authority of labour relations boards. In this respect, the bastions of liberal voluntarism monitored the scope of industrial pluralism. Thus, the tensions between industrial pluralism and liberal voluntarism that were inscribed within the regime of legality were also played out in, and between, the different institutions of the state.13 Not only did industrial pluralism build on and incorporate elements of liberal voluntarism, it both preserved and deepened the regime’s commitment to compulsory conciliation. Collective bargaining legislation took the distinctive element of industrial voluntarism—compulsory conciliation—and extended it beyond disputes that threatened the public interest to any dispute whatsoever. Since the provincial Department of Labour was typically charged with administering the compulsory conciliation services, it continued to develop practices and personnel to fill this expanding role. Through their control over conciliation, Department of Labour officials could influence the timing of lawful industrial action as well as indicate to the parties the kinds of demands that were acceptable. In this institutional and political climate, it is not surprising that responsible unions came to emphasize their own institutional security and their members’employment-related benefits rather than organizing new sectors. Business unionism predominated, as unions saw their role as obtaining the best deal for their specific constituencies rather than as leading a broader social movement to obtain greater economic equality for working people as a whole. Despite the fairly rapid increase in trade union membership with the advent of industrial pluralism, the growth

308

LABOUR BEFOR E THE LAW

of unionization after World War II was extremely uneven. Workers in the resource, mass-production, and transportation industries joined their skilled craft brothers in the ranks of organized labour, so that in the mid-1950s ‘the typical union member was a relatively settled, semiskilled male worker within a large industrial corporation.’ Except in Saskatchewan, collective bargaining legislation did not cover publicsector employees, thereby excluding increasing numbers of workers from the right to bargain collectively through the union of their choice. Moreover, even within the private sector, in which some form of collective bargaining legislation was very likely to apply, certain industries and workplaces were a better fit than others. In the secondary sector, which was highly competitive and labour-intensive, the legislation tended to function more as an impediment to union representation and collective bargaining.14 In large measure this was a result of the fragmented structure of Canadian collective bargaining. The constitutional division of powers, in which primary responsibility for labour relations is provincial, has contributed to the regional nature of labour markets and collective bargaining across Canada. The maintenance of regional wage rates was a major concern of economic planners during World War II. Only the strongest trade unions obtained anything that approximated industry-wide bargaining, and even then it was not legally enforceable in most cases. Bargaining-unit determination policies adopted and administered by labour relations boards reflected and reinforced fragmentation. Plant-by-plant bargaining became the norm; ‘instead of working towards the generalization and equalization of power and wage rates, [the collective bargaining system that developed] accentuated the differentials of power and anomalies of disparate wage rates.’ Moreover, the bias towards certification at the level of the workplace made it difficult for workers in small workplaces in the competitive sector, unless they enjoyed a monopoly of specific skills, to wield enough bargaining power to secure a collective agreement, even if they were unionized. The cost of organizing and servicing small bargaining units, combined with the difficulty of obtaining significant contract improvements from marginal firms facing stiff competition, was (and remains) a strong disincentive for unions to mount major organizing drives in these sectors.15 The structural limitations of industrial pluralism were reinforced and overlaid by other features of the postwar compromise. At the macro level, the systemic segmentation of the labour market enabled leading firms to concede higher wages to some organized workers in the core sectors, but at the same time a large category of unorganized

THE HEGEM ONY OF I NDUSTRI AL PLUR A L I S M

309

workers would remain available, thereby helping to lower aggregate labour costs. Workers in core firms shared a narrow economic selfinterest in maintaining a segmented labour market, since it provided low-cost consumer goods. Moreover, the composition of the secondary workforce was sufficiently distinct from that of the primary sector that different working conditions, wages, standards, and the absence of union representation were considered natural or, at least, uncontroversial.16 The reconfiguration of the sexual division of labour was a crucial element in the postwar compromise. Federal government policy during the reconstruction period was shaped by the assumption that women’s primary role was domestic and not economic. Various measures, including the closing of day cares, the renewal of civil service regulations barring women from federal government work, and income tax changes that created a disincentive to married women to work for pay, were aimed at reducing women’s, especially married women’s, attachment to the labour force. To steer women away from the relatively well-paid jobs some had enjoyed during the war, the government encouraged women to undertake training in areas such as domestic service, household management, waitressing, and hairdressing. Employers either got rid of women workers or confined them to lower-paid and lower-status jobs when men returning for the war were granted, with union support, full recognition of their wartime service as part of their employment seniority. Unions also helped to strengthen sex-based segregation in many workplaces by negotiating sex-based classifications and seniority systems that operated to the disadvantage of women workers. The postwar goal of maintaining a high and stable level of employment and income only pertained to men. Women were encouraged to enter the labour market only when economic activity was at such a level that their employment would not prevent men from obtaining positions.17 Men’s primary role in the labour market, and women’s resulting economic dependency, was reinforced by, and reflected in, the family allowance policy, the thrust of which was to subsidize the income of families who could not adequately provide for their needs with the man’s wages alone. Family allowances not only rescued the government’s wage stabilization policy in the short term, they also provided a basis for developing a competitive postwar economy in the world market. The Finance Department recognized that ‘in the long run, minimum wages and average wages are likely to be pushed higher in the absence of family allowances than they would be if this supplementary equalization policy were in effect.’18

310

LABOUR BEFOR E THE LAW

Thus, government policies and employer staffing policies, aided in part by union bargaining strategies, converged to help create and sustain a low-wage sector, one that in the long run would have a drag-down effect on the conditions of all workers. Not only was this secondary sector specifically gendered, but as immigration increased, especially from beyond the north and west of Europe, the secondary labour market was increasingly racialized. The wage gap between unionized and non-unionized sectors grew. Moreover, the number of occupations decreased where collective bargaining made economic sense for unions, while occupations structurally (and culturally) outside the model’s reach, such as personal services, broader public services, and financial institutions, where a large proportion of the growing numbers of women and immigrant workers were employed, increased.19 These weaknesses in the industrial pluralist regime of industrial legality were less apparent, at least to workers employed in the core sectors, during its heyday in the 1950s and 1960s. The virtuous circle achieved through Fordist policies that enabled core workers to share in productivity increases fuelled economic prosperity by expanding domestic consumption of mass-manufactured goods. Moreover, world demand for Canadian resources remained high. The federal Liberals flourished from sustained economic growth and rising prosperity, especially at the expense of the CCF. The anti-Communist crusade, while not as virulent or explicit as in the US, was very successful within the labour movement in Canada, and in 1956 the TLC and CCL, following the example of their American counterparts, joined forces. It appeared that this was the era in which ideology, understood as class conflict, ended. Yet, even under propitious economic conditions industrial pluralism had a limited scope. By the mid-1950s, more than 65 per cent of Canadian workers were not union members and union density remained stagnant until the 1960s. Few efforts were made to organize workers in the secondary labour market. By then industrial unionism was virtually hegemonic and union leaders focused their energies on defending their members’ interests, not on pursuing a broader agenda of social unionism. As Jane Ursel recounts, the beauty of the segmentation strategy was that ‘the state could accommodate the demands of capital for a plentiful supply of cheap labour (women and immigrants) and contain the spread of unionization (through a cautious implementation of labour relations acts), without unduly provoking organized labour.’20 In the mid-1960s the industrial pluralist regime of legality faced its first major challenge. However, the wave of strikes that shook the

THE HEGEM ONY OF I NDUSTRI AL PLUR A L I S M

311

country triggered a typically Canadian response. The federal government appointed a task force, composed of industrial relations experts, to evaluate the existing federal labour relations law and policy. In British Columbia and Ontario, where employers’ successful recourse to the courts had begun to tilt the balance away from industrial pluralism and back to liberal voluntarism, the provincial governments appointed commissions to study the problems caused by labour injunctions. The expert commissions recommended variations on the same solution to the problem of labour unrest—strengthen the institutions of industrial pluralism. The legislative response was to enhance the role of the labour relations boards, and several jurisdictions endowed their boards with new remedial powers. The idea was to minimize the vestiges of liberal voluntarism. In British Columbia, jurisdiction to regulate picketing in a labour dispute was transferred from the ordinary courts to labour tribunals, while in Ontario, restrictions on the granting of injunctions in a labour dispute were tightened. The judiciary was also told to defer to the expertise of specialized tribunals.21 The militancy of the 1960s not only resulted in the strengthening of industrial pluralist institutions, it also led to their extension throughout the public sector. Public-sector workers, who outside of Saskatchewan did not enjoy any legal right to bargain collectively or to be represented by a union, increasingly engaged in illegal collective action to press their demands. By 1973 every government in Canada had legislation providing for collective bargaining by public-sector workers. Although modelled on private-sector collective bargaining statutes, legislation designed for the public sector was inferior in several respects: it placed limitations on the right to strike and excluded a range of issues from the scope of collective bargaining. The regime of industrial pluralism was modified to deal with the distinguishing feature of collective bargaining in the public sector—the absence of market competition as a discipline. Public-sector collective bargaining legislation marked the third wave of unionization in Canada. This trend resulted in an increased feminization of the labour movement since the organization of public-sector employees accounted for the largest increase in the unionization of women, a 106 per cent increase for women compared to a 40 per cent increase for men between 1966 and 1976.22 But almost as soon as public-sector collective bargaining rights were institutionalized, the federal government elevated the attack on inflation to the top of the political agenda. The embrace of monetarism marked a profound transformation in macroeconomic policy

312

LABOUR BEFOR E THE LAW

as Keynesianism fell out of favour. In making the choice to place greater emphasis on inflation control than on full employment, the federal government initiated assaults on public-sector wages and collective bargaining rights and restricted access to social programs for all workers. Although the first wage controls (1975) applied to the private and public sectors, suspending federal and provincial collective bargaining rights across the country on the ground that the doubledigit inflation constituted a national emergency, they had their greatest impact and strongest legacy on the public sector. In 1982 the federal government explicitly targeted its own workers for wage controls, and it was followed by the majority of the provinces. Throughout the 1980s, across the public sector, collective bargaining rights were suspended, services were reduced and contracted out, and managers took a harder line at the bargaining table. The legislative assault on collective bargaining in the public sector illustrates the extent to which industrial pluralism is based on a fundamental commitment to market voluntarism.23 During the 1980s provincial governments tinkered with privatesector collective bargaining rights, rather than substantially shifting the balance of power to employers. But despite the stability in the industrial pluralist legal regime, bargaining in the 1980s was much tougher than it had been. The recession, which began in 1982, initiated a fundamental restructuring of the Canadian economy. That year, union density peaked at 40 per cent, but it soon began to decline as manufacturing jobs were lost, never to return. Unemployment was high and the private service sector outstripped the goods-producing sector in creating jobs. Throughout the 1980s, concessions in the private sector in the form of wage freezes or actual pay cuts were widespread, master agreements were torn up, and two-tiered contracts were implemented, all contributing to an unprecedented wage deceleration. Moreover, the Supreme Court of Canada soundly rejected unions’ argument that the guarantee of freedom of association in the newly entrenched Charter of Rights and Freedoms protected either the right to bargain collectively or to strike. In a series of decisions that reinforced the voluntarist tenets of individualism, contract, and property, the Court characterized collective bargaining as a modern legislative compromise, rather than a fundamental right, and elevated private common law beyond legal scrutiny.24 While there have been skirmishes along their edges, the core institutions of industrial pluralism in the private sector have not been subject to direct assault. Instead, the macroeconomic conditions necessary to support the regime are being undermined. By the 1990s

THE HEGEM ONY OF I NDUSTRI AL PLUR A L I S M

313

the federal government had abandoned the last shreds of any commitment to full employment in its determination to fight the deficit and, together with provincial governments, it has substituted workfare for welfare as the guiding theme of social policy and embraced flexibility as the defining characteristic of a well-functioning labour market. New technology and increased international trade are identified as the drivers behind the economic revolution known as globalization, and governments have persuaded their populations that it is necessary to submit any vestiges of political control over their national economies to the logic of the international market. In Canada, this economic wisdom has been firmly institutionalized; the 1988 Free Trade Agreement with the United States, which was negotiated by the Tory government, was confirmed by the Liberals in 1993 when they extended it to include Mexico. The web of multilateral agreements limits the ability of nation-states to regulate the behaviour of private corporations and strengthens the sanctity of private property internationally. The need to adjust to international competition has been used to justify the degradation of the social wage and polarization in the labour market is increasing.25 Economic restructuring and increased competition have exposed the limits of industrial pluralism. This regime has never worked in the private service sector, small workplaces, or atypical jobs, especially those associated with women’s employment, such as part-time and temporary office work. And it is precisely in these sectors, workplaces, and jobs that employment is growing. Increasingly, industrial pluralism is confined to a narrow segment of workers; however, there is little evidence to suggest that the labour movement is searching for, let alone seeking to institutionalize, a new paradigm. Although it is one of the highest mediations of the conflict between capital and labour, no legal regime can resolve the enduring problem of liberalism, the fundamental contradiction between labour as a commodity and the social solidarity necessary for the reproduction and sustenance of human life. All the regimes of industrial legality we surveyed arise out of capitalist formations and the conflicts endemic to them. No regime has overcome or resolved finally the conflict that arises out of the commodification of labour power, although a central project of all of them has been to legitimate that commodification ideologically and materially, and to encourage existing organizations of workers to behave responsibly as wholesalers of the labour power of their members. Liberal voluntarism accommodated craft workers in this way in the late nineteenth century, just as industrial pluralism accommodated industrial workers

314

LABOUR BEFOR E THE LAW

in core sectors in the mid-twentieth century. But the material benefits that underwrite the ideological appeal of norms of voluntarism are only available for some workers some of the time, and while worker self-organization can increase labour’s ability to extract a larger share of the pie, more powerful economic and political actors can limit potential gains. The project of globalization, for example, strikes directly at the capacity of workers to act solidaristically, even as wholesale sellers of labour power. Workers’ collective power has been limited geographically and politically to the nation-state. As constraints on the democratic impulse of liberalism tighten, the corrosive effect of commodification on the conditions of working peoples’ lives increases, renewing and sharpening the contradiction between atomistic competition and the necessity of social solidarity for human life of a decent quality and standard. Discursive constructions play a role in papering over these contradictions, but legal discourse is not naturally hegemonic. We have seen workers defy the word of the law on numerous occasions: craft workers organizing in defiance of criminal conspiracy laws, coal miners striking despite prohibitions, and mass-production workers sitting down in their workplaces in defiance of their employers’ private property rights. State-sponsored, legally enforceable discourses attained an unprecedented legitimacy in the regime of industrial pluralism, in part because the production of these discourses was delegated to labour boards and arbitrators who were supposed to be more sensitive than judges to the web of understandings that supported the regime. But this achievement cannot be separated from the material benefits that core workers derived from it. As our historical study has demonstrated, and as critical legal pluralists are fond of reminding us, worker-subjects have the capacity to construct their own discourses in opposition to officially produced and approved ones.26 The discourses of industrial voluntarism, for example, ran aground on the shoals of the Great Depression and workers demanded the right, not merely the privilege, to organize and bargain collectively. There are signs that official discourses of industrial pluralist legality may be losing their hegemonic status, but we have not yet reached a crisis of legitimacy. If such a crisis comes, it may initiate a more radical break than the transitions between the regimes examined here. These regimes were born of workers’ engagement with the liberal democratic state, which, despite its limitations, still preserved the idea that citizenship mattered and that the boundary between the political and the economic was permeable. The liberal state could be made to respond to

THE HEGEM ONY OF I NDUSTRI AL PLUR A L I S M

315

social demands democratically expressed. It could impose limits on private property and freedom of contract. When public opinion supports workers’ collective action the constraints of law are loosened. The continuing political saliency of the liberal state can no longer be assumed. Democratic citizenship is being systematically narrowed by supranational free trade regimes that require nation-states to recognize the rights of property owners over the claims of their citizens. Such charters of corporate rights and international trade dispute resolution mechanisms have not been matched either by the guarantee of social rights or by the creation of credible alternate institutions through which democratic demands can be effectively pursued. Instead of being a site for the mediation of class conflict, the liberal state is increasingly becoming a vehicle for imposing the discipline of the competitive market on its populations. The values and institutions of liberal voluntarism are gaining ascendency. Much of this has been accomplished by convincing people that they have no choice since the forces of globalization are irresistible. But as this ideological project is contested, the use of coercion can be expected to increase. The recent experience of public-sector workers, especially in Ontario, suggests that resistance will be met with old-style coercion. This assault on trade union rights may be the trajectory for the reconstruction of a new regime of industrial legality in the neo-liberal, globally competitive state. But, as this study has demonstrated, workers historically have not passively acceded to institutional and legal arrangements that fail to incorporate at least some of their demands. For legitimacy’s sake, the nation-state has leavened coercion with accommodation in responding to workers’ collective action and, despite the shift in power in its favour, it is unlikely that capital can achieve on a global scale what it has been unable to achieve nationally.27

Notes

Chapter 1 1. Ford Motor Company of Canada and U.A.W., 46 C.L.L.C. 18,001,160. 2. Bryan D. Palmer, Working-Class Experience: Rethinking the History of Canadian Labour, 1800–1991, 2nd edn (Toronto, 1992), 17. 3. Karl Polyani, The Great Transformation (Boston, 1957); Antonella Picchio, Social Reproduction: The Political Economy of the Labour Market (Cambridge, 1992). 4. Palmer, Working-Class Experience, 19–22; Bryan D. Palmer, ‘Mutuality and the Masking/Making of Difference: Mutual Benefit Societies in Canada, 1830–1950’, in Marcel van der Linden, ed., Social Security Mutualism: The History of Mutual Benefit Societies (Bern, 1996), 111–46. 5. Samuel Bowles and Herbert Gintis, Democracy and Capitalism (New York, 1987); Ellen Meiksins Wood, Democracy Against Capitalism (Cambridge, 1995). 6. Bob Jessop, The Capitalist State (New York, 1982); David Montgomery, Citizen Worker (Cambridge, 1993). 7. A. Ross McCormack, Reformers, Rebels, and Revolutionaries: The Western Canadian Radical Movement, 1899–1919 (Toronto, 1977); Mark Leier, Where the Fraser River Flows (Vancouver, 1990); Craig Heron, ‘Labourism and the Canadian Working Class’, Labour/Le Travail (hereafter L/LT) 13 (1984): 45–76. 8. Peter B. Evans et al., eds, Bringing the State Back In (Cambridge, 1985); Sven Steinmo et al., eds, Structuring Politics: Historical Institutions in Comparative Analysis (Cambridge, 1992).

316

N OT E S

317

9. Lenard R. Berlanstein, ed., Rethinking Labor History (Urbana, Ill., 1993); for a critique, see Bryan D. Palmer, Descent into Discourse (Philadelphia, 1990); Christopher L. Tomlins, Law, Labor, and Ideology in the Early American Republic (Cambridge, 1993). 10. Anthony Woodiwiss, Social Theory After Post-Modernism: Rethinking Production, Law, and Class (London, 1990); Trevor Purvis and Alan Hunt, ‘Discourse, ideology, discourse, ideology, discourse, ideology. . .’, British Journal of Sociology 44 (1993): 473–99; Douglas Hay, ‘Time, Inequality, and Law’s Violence’, in Austin Sarat and Thomas R. Kearns, eds, Law’s Violence (Ann Arbor, 1992), 141–73. 11. Hay, ‘Time, Inequality, and Law’s Violence’, 169. 12. Terry Eagleton, Ideology (London, 1991), 56. 13. Philip Corrigan and Derek Sayer, The Great Arch: English State Formation as Cultural Revolution (Oxford, 1985), 3–6. 14. Donald H. Avery, Reluctant Host: Canada’s Response to Immigrant Workers, 1896–1994 (Toronto, 1995). 15. Corrigan and Sayer, The Great Arch, 206. 16. Michael Earle and Ian McKay, ‘Introduction: Industrial Legality in Nova Scotia’, in Earle, ed., Workers and the State (Fredericton, 1989), 9–23; Palmer, Working-Class Experience, 278–84; David T. Matheson, ‘The Canadian Working Class and Industrial Legality, 1939–49’, MA thesis (Queen’s University, 1989); Peter Stuart McInnis, ‘Harnessing Confrontation: The Growth and Consolidation of Industrial Legality in Canada, 1943–1950’, Ph.D. thesis (Queen’s University, 1996). 17. David Frank, J.B. McLachlan: A Biography (Toronto, 1999); Frank, ‘Industrial Democracy and Industrial Legality: The UMWA in Nova Scotia, 1908–1927’, in John H.M. Laslett, ed., The United Mineworkers of America (University Park, Penn., 1996), 438–58. 18. Wesley N. Hohfeld, Fundamental Legal Conceptions as Applied in Legal Reasoning (New Haven, 1919). 19. Bob Fine, Democracy and the Rule of Law: Liberal Ideals and Marxist Critiques (London, 1984), 10–14; Ellen Meiksins Wood, ‘The Separation of the Economic and Political in Capitalism’, New Left Review 127 (1981): 66–95. 20. Fine, Democracy and the Rule of Law, 10–14; Corrigan and Sayer, The Great Arch, 185–8. 21. Fine, Democracy and the Rule of Law, 139–42; Karl Marx, Capital, vol. 1 (New York, 1967), 235. 22. Frank R. Scott, Essays on the Constitution (Toronto, 1977), 336–52; J.R. Mallory, Social Credit and the Federal Power in Canada (Toronto, 1976), ch. 4; Janine Brody, The Political Economy of Canadian Regionalism (Toronto, 1990).

318

NOTES

Chapter 2 1. Douglas Cruikshank and Gregory S. Kealey, ‘Strikes in Canada, 1891– 1950’, L/LT 20 (1987): 85–145. 2. Jeremy Mouat, ‘Copper and Class Struggle’, L/LT 39 (Spring 1997): 279. 3. William E. Forbath, Law and the Shaping of the American Labor Movement (Cambridge, Mass., 1991), ch. 3; Felix Frankfurter and Nathan Green, The Labor Injunction (New York, 1930); Christopher L. Tomlins, The State and the Unions: Labor Relations, Law, and the Organized Labor Movement in America, 1880–1960 ( Cambridge, 1985); Victoria Hattam, Labor Visions and State Power: The Origins of Business Unionism in the United States (Princeton, NJ, 1993); A.W.J. Thompson, ‘The Injunction in Trade Disputes in Britain before 1910’, Industrial and Labour Relations Review 19 (1965–6): 213–23; J. Saville, ‘Trade Unions and Free Labour: The Background to the Taff Vale Decision’, in M.W. Flynn and T.C. Smout, eds, Essays in Social History (Oxford, 1974), 251–76; Michael J. Klarman, ‘The Judges Versus the Unions: The Development of British Labor Law, 1867–1913’, Virginia Law Review 75 (1989): 1487–1602; John C. Orth, Combination and Conspiracy: A Legal History of Trade Unionism, 1721–1906 (Oxford, 1991). 4. Hynes v. Fisher et al. (1883), 4 O.R. 60. For a detailed discussion of these strikes and the ensuing legal actions, see Eric Tucker and Judy Fudge, ‘Forging Responsible Unions: Metal Workers and the Rise of the Labour Injunction in Canada’, L/LT 37 (1996): 96–101. 5. Jeremy Mouat, Roaring Days: Rossland’s Mines and the History of British Columbia (Vancouver, 1995), 88–108; Labour Gazette (hereafter LG) (Dec. 1901): 362–5, (Sept. 1904), 303–6; Le Roi Mining Company v. Rossland Miners’ Union (1901), 8 B.C.R. 370; Centre Star Mining Company v. Rossland Miners’ Association (1902), 9 B.C.R. 190; Centre Star v. Rossland Miners’ Union (1903), 9 B.C.R. 531; Centre Star Mining Company v. Rossland Miners’ Union (1904), 10 B.C.R. 306 (B.C.S.C.) at 308; Centre Star Mining Company v. Rossland Miners’ Union (1905), 11 B.C.R. 194. 6. Taff Vale Railway v. Amalgamated Society of Railway Servants, [1901] A.C. 426. 7. A.W.R. Carrothers, ‘A Legislative History of the B.C. Trade-unions Act: The Rossland Miners’ Case’, U.B.C. Legal Notes 2 (1956): 341–4; Harold Fabian Underhill, ‘Labor Legislation in British Columbia’, Ph.D. thesis (University of California, 1936), 222–3; S.B.C., 1902–3, c. 66. 8. Industrial Banner (Apr. 1903): 1; TLC, Proceedings (1903), 25; TLC, Proceedings (1902), 40, 55; LG (Oct. 1902), 235.

N OT E S

319

9. Canada Foundry v. The Moulders Union, 20 Nov. 1903, LG (Jan. 1904): 824; Krug Furniture Company v. Berlin Union of Amalgamated Woodworkers (1903), 5 O.L.R. 463; Small v. American Federation of Musicians (1903), 2 O.W.R. 33; Hough Lithographing Company v. Feather et al., Toronto, 30 Oct. 1905, LG (Dec. 1905): 692–3; Brauch v. Roth (1904), 10 O.L.R. 284; Cotter v. Osborne (1908), 8 W.L.R. 451. 10. Small v. Hyttenrauch (1903), 6 O.L.R. 388 (Ont. Div. Ct.); Metallic Roofing Co. v. Jose (1907), 14 O.L.R. 156 (Ont. C.A.); Krug Furniture Company v. Berlin Union of Amalgamated Woodworkers (1903), 5 O.L.R. 463; Cotter v. Osborne (1908), 8 W.L.R. 451, aff’d (1909), 18 Man. R. 471 (Man. C.A.); Vulcan Iron Works Co. v. Ironmoulders Union (1909), 10 W.L.R. 421, aff’d (1911) 15 W.L.R. 649 (Man. C.A.). 11. David Jay Bercuson, Confrontation at Winnipeg (Montreal, 1974), 15–17; Vulcan Iron Works v. Ironmoulders Union (1909), 10 W.L.R. 421; LG (June 1906): 1386, 1389; (July 1906): 71–2, 76; (Dec. 1908): 634–44; (Apr. 1909): 1152–4; (Apr. 1911): 1171; (May 1913): 1323; (June 1913): 1444. 12. Vulcan Iron Works Co. v. Ironmoulders Union (1909), 10 W.L.R. 421, 425, 430–1; Vulcan Iron Works v. Lodge No. 174 Ironmoulders Union (1911), 16 W.L.R. 649 (Man. C.A.); LG (May 1913): 1323. 13. TLC, Proceedings (1905), 58; (1906), 13–14. 14. Toronto Telegram, 22 Sept. 1913. 15. TLC, Proceedings (1905), 14; Craig Heron and Bryan D. Palmer, ‘Through the Prism of the Strike: Industrial Conflict in Southern Ontario, 1901–1914’, Canadian Historical Review 58 (1977): 62; R. v. Blake, 23 Apr. 1907, LG (May 1907): 1311; (Apr. 1910): 1197. 16. TLC, Proceedings (1901), 13; S.C. 1905. c. 9; House of Commons Debates (13 July 1905), 9436–7; Industrial Canada (hereafter IC) (1905): 11, 142. 17. Brantford Courier, 11 June 1908; Globe, 11 June 1908; LG (July 1908): 94–5. 18. IC (July 1908): 1107. 19. Tucker and Fudge, ‘Forging Responsible Unions’, 107. 20. Dixon Carriage Works, IC (Dec. 1903): 289; Krug Furniture Co. v. Berlin Union No. 112, Amalgamated Woodworkers International Union of America (1903), 2 O.W.R. 282. 21. Metallic Roofing Co. v. Local Union No. 30, Amalgamated Sheet Metal Workers (1903), 2 O.W.R. 266. 22. IC (Sept. 1903): 54; (Oct. 1903): 135. 23. Ibid., 133, 134; (Mar. 1903): 368–9. 24. Metallic Roofing Co. v. Local Union No. 30 (1905), 9 O.L.R. 171; IC (Apr. 1905): 556; Metallic Roofing Co. v. Local Union No. 30 (1905), 10 O.L.R. 108.

320

NOTES

25. Metallic Roofing Co. v. Jose (1906), 12 O.L.R. 200 (Div. Ct.); (1907), 14 O.L.R. 156 (C.A.); [1908] A.C. 514; Ontario Archives (hereafter OA), RG 22, York County SCO, Action File 639/1902; LG (Mar. 1909): 1018. 26. IC (Aug. 1908): 35; Cotter v. Osborne (1907), 17 Man. R. 248; Cotter v. Osborne (1908), 8 W.L.R. 451; aff’d (1909), 18 Man. R. 471 (C.A.); Vulcan Iron Works v. Ironmoulders Union (1909), 10 W.L.R. 421; aff’d (1911) 16 W.L.R. 649 (C.A.). 27. Successful actions include Slenter [sic] v. Scott (1914), 16 D.L.R. 659 (B.C.S.C.), aff’d Sleuter v. Scott (1915), 8 W.W.R. 714 (B.C.C.A.); LG (Feb. 1905): 917–18; (Dec. 1905): 645–6; Parker v. Toronto Musical Protective Association (1901), 32 O.R. 305. Unsuccessful ones include: Graham v. Bricklayers and Masons Union (1908), 9 W.L.R. 475 (B.C.S.C.); R. v. Dalton, 28 Dec. 1905 (Ham. Pol. Ct.), LG (Feb. 1906): 941–2. 28. Lefebvre v. Knott (1907), 13 C.C.C. 223 (Que. S.C.), 229. 29. Some judges refused to convict strikers for simply communicating with non-striking workers: Rex v. Fraser et al., 14 Dec. 1906, (Winchester Co. Ct.), LG (Feb. 1907): 927; R. v. Dalton and other, 28 Dec. 1905 (Ham. Pol. Ct.), Ontario Legislative Assembly, Sessional Papers, v. 39, pt. 6, 134 (1906). Threats and assaults also resulted in convictions, with more serious actions resulting in committal to jail: Rex v. Leader and Robinson, 28 Nov. 1907, LG (Dec. 1907): 738; The Scottish Rubber Company v. Schartz, 27 July 1904, LG (Sept. 1904): 302; The King v. Hay, National Archives of Canada (hereafter NAC), RG 22, series 393, box 42, Frontenac, 190; R. v. Beacon, 24 Jan. 1906 (Montreal Pol. Ct.), LG (Feb. 1906): 942; R. v. Oranski, 25 Apr. 1907, LG (May 1907): 1309. 30. Globe, 11 July 1900; Brantford Courier, 9 Apr. 1901, 1; Canada Foundry v. Emmett (1903), 2 O.W.R. 1032. 31. Employers’ actions to beggar trade unions were successful in the Rossland gold mine strike and the strikes against Metallic Roofing Company, Vulcan Iron Works, and the Winnipeg master plumbers. 32. Mitchell v. Woods (1906), 4. W.L.R. 371 (B.C.S.C.); R. v. Employers’ Association, LG (Feb. 1907): 927 (Toronto Pol. Ct.); Industrial Banner (Oct. 1905): 2. 33. Gurney Foundry Co. v. Emmett (1903), 2 O.W.R. 1038; LG (Sept. 1903): 267; (Feb. 1905): 917; Plant v. Jones & Moore Electric Co., LG (Mar. 1908): 1159–60 (Ont. S.C.). 34. James Conley, ‘ “Open Shop” Means Closed to Union Men: Carpenters and the 1911 Vancouver Trades General Strike’, BC Studies 91–2 (1991–2): 143. 35. OA, RG 432, files 1908/653 & 1914/1914; NAC, RG 27, vol. 300, strike 3618; NAC, RG 27, vol. 303, strike 9.

N OT E S

36. 37. 38. 39. 40.

41. 42. 43. 44.

45.

46. 47. 48. 49. 50.

51. 52.

53. 54.

321

TLC, Proceedings (1903), 43, 64 ff.; (1904), 10, 52; (1905), 16; (1906), 9 ff.; (1909), 88; (1910), 70. Ibid. (1906), 44. IC (Oct. 1903): 133–34. Centre Star Mining Company v. Rossland Miners Union (1904), 10 B.C.R. 306 (B.C.S.C.). The King v. John Hay, RG 22, series 393, box 42, Frontenac; R. v. Metcalf, Sessional Papers, Ont. Leg. 1907, vxv, pt. 7, 1908, 2208. Juries awarded damages against trade unions in Rossland, Metallic, Vulcan, and Cotter. Mitchell v. Woods (1906), 4 W.L.R. 371 (B.C.S.C.); R. v. Employers’ Association, LG (Feb. 1907): 927 (Toronto Police Court). Desmond Morton with Terry Copp, Working People (Ottawa, 1980), 83. Jeremy Webber, ‘Compelling Compromise: Canada Chooses Conciliation over Arbitration, 1900–1907’, L/LT 28 (1991): 20. John C. Weaver, Crimes, Constables and Courts (Montreal and Kingston, 1995), 118–19; Jacques Ferland, ‘Syndicalisme “parcellaire” et syndicalisme “collectif” ’, L/LT 19 (1987): 75–6; Jacques Rouillard, Histoire du Syndicalisme au Québec (Montreal, 1989), 110. TLC, Proceedings (1908), 48; Gillian Creese, ‘Exclusion or Solidarity? Vancouver Workers Confront the “Oriental Problem” ’, BC Studies 80 (1988–9): 24–51. William David Atkinson, ‘Organized Labour and the Laurier Administration’, MA thesis (Carleton University, 1957), ch. 2. Paul Craven, ‘An Impartial Umpire’: Industrial Relations and the Canadian State, 1900–1911 (Toronto, 1980), 194. Webber, ‘Compelling Compromise’, 19; LG (Sept. 1900): 29; TLC, Proceedings (1900), 7; Craven, ‘An Impartial Umpire’, 220. Jay Atherton, ‘The British Columbia Origins’, BC Studies 32 (1976–7): 93–105. Mouat, Roaring Days, 76–85; Atherton, ‘The Department of Labour and Industrial Relations’, 22–5; Webber, ‘Compelling Compromise’, 21–3; NAC, Justice, RG 13, vol. 1900, file 542/1900, Clute to Edmund L. Newcombe, Deputy Minister of Justice, 20 Aug. 1900; Conciliation Act, S.C. 1900, c. 24. Memo by R. Clute with covering letter by King to Laurier, NAC, Laurier Papers, c-7783; S.C. 1901, c. 13. William Renwick Riddell, ‘Labor Legislation in Canada’, Minnesota Law Review 5 (1921): 246; Rex v. Geiser (1901), 5 C.C.C. 154; LG (Oct. 1901): 210. Atkinson, ‘Organized Labour and the Laurier Government’, 30. LG (Dec. 1901): 363.

322

NOTES

55. Allan Donald Orr, ‘The Western Federation of Miners and the Royal Commission on Industrial Disputes in 1903 with Special Reference to the Vancouver Island Local Miners’ Strike’, MA thesis (University of British Columbia, 1968), 108; Craven, ‘An Impartial Umpire’, 233–4, 244–5. 56. LG (Oct. 1901): 242–3. 57. Atkinson, ‘Organized Labour and the Laurier Administration’, 30. 58. Margaret E. McCallum, ‘The Mines Arbitration Act, 1888: Compulsory Arbitration in Context’, in Philip Girard and Jim Phillips, eds, Essays in the History of Canadian Law, vol. 3, Nova Scotia (Toronto, 1990), 303–25; S.N.S. 1888, c. 3. 59. Bob Russell, Back to Work? Labour, State and Industrial Relations in Canada (Scarborough, Ont., 1990), 62–8; Craven, ‘An Impartial Umpire’, 230–5; Webber, ‘Compelling Compromise’, 29–30. 60. Webber, ‘Compelling Compromise’, 32–5; Russell, Back to Work?, 59; Craven, ‘An Impartial Umpire’, 274–6; J.H. Tuck, ‘Canadian Railways and the Unions in the Running Trades, 1865–1914’, Relations Industrielles 36 (1981): 126. 61. Report of the Department of Labour for the Year ending June 30, 1903, in Canada, House of Commons, Sessional Paper No. 36 (1904), 59. 62. S.C. 1903, c. 55. 63. Report of the Department of Labour for the Year ending June 30, 1903, 71. 64. The RLDA was incorporated with the Conciliation Act of 1900 into the Conciliation and Labour Act, R.S.C. 1906, c. 96. It was not repealed until 1 Dec. 1983. Craven, ‘An Impartial Umpire’, 278–9; Webber, ‘Compelling Compromise’, 36–7. 65. LG (Nov. 1900): 101–3, 118; Ferland, ‘Syndicalisme “parcellaire” et syndicalisme “collectif ” ’, 75–6; LG (Aug. 1901): 125; (July 1902): 35–9, 48–53; (May 1903): 907, 920–2, 924; (June 1903): 1022–28, 1032; the strike at the Niagara electrical works, LG (Nov. 1903): 588–9, 591; (July 1904): 83, 85–9; (Aug. 1904): 186–8; Halifax Morning Chronicle, 7–9 July 1904. 66. TLC, Proceedings (1902), 65. 67. TLC, Proceedings (1907), 71; (1910), 48; (1906), 63; Miles O’Brien, ‘Manhood and the Militia Myth: Masculinity, Class and Militarism in Ontario, 1902–1914’, L/LT 42 (Fall 1998): 134–5. 68. Desmond Morton, ‘Aid to Civil Power: The Canadian Militia in Support of Social Order, 1867–1914’, Canadian Historical Review 51 (1970): 107–25; J.B. Pariseau, Disorders, Strikes and Disasters: Military Aid to the Civil Power in Canada, 1867–1933 (Ottawa, 1973); Webber, ‘Compelling Compromise’, 43 n. 51; LG (Oct. 1910): 491.

N OT E S

323

69. Orr, ‘Western Federation of Miners’, 3; Craven, ‘An Impartial Umpire’, 247; Webber, ‘Compelling Compromise’, 37; Centre Star Mining Company v. Rossland Miners Union (1903), 9 B.C.R. 531; Centre Star Mining Company v. Rossland Miners Union (1904), 10 B.C.R. 306; (1905) 11 B.C.R. 194. 70. LG (July 1903): 78–81; Report of the Royal Commission on Industrial Disputes in the Province of British Columbia (Ottawa, 1903), 65–6. 71. Ibid., 76, 75. 72. Ibid., 73–5, 64. 73. Ibid., 70–1. 74. Robert Babcock, Gompers in Canada: A Study in American Continentalism before the First World War (Toronto, 1974), 3, 110, 113; Toiler, 17 July 1903, 4; 24 July 1903, 4; 14 Aug. 1903, 4. 75. IC (Sept. 1903): 59; (Dec. 1903): 287–9; (July 1904): 586–7; (Oct. 1905): 141–2; Atkinson, ‘Organized Labour and the Laurier Administration’, 34–40. 76. Gerry Berkowski, ‘A Tradition in Jeopardy: Building Trades Workers’ Responses to Industrial Capitalism in Winnipeg, 1880–1914’, MA thesis (University of Winnipeg 1986), 148–9; LG (July 1906): 96; (Sept. 1906): 322; (Oct. 1906): 438, 441; (Nov. 1906): 556–8; (Dec. 1906): 696. 77. LG (Apr. 1906): 1153, 1155–6, 1158; (May 1906): 1265–6, 1270; (July 1906): 73–4, 77; Weaver, Crimes, Constables and the Courts, 118–19; LG (Oct. 1906): 438, 441; (Nov. 1906): 556–8. 78. Manslaughter charges were brought against six of the strikers for killing the detectives, although they were convicted for the lesser offence of causing a riot. LG (Oct. 1906): 438, 441; (Nov. 1906): 556–8; (Jan. 1907): 781–2; (Dec. 1907): 234; Jacques Roland Gendron, ‘Industrial Development and Labour Unrest in Quebec, 1896–1914’, MA thesis (University of Calgary, 1977), 110–12.

Chapter 3 1. Canada, House of Commons Debates (14 Feb. 1906–7), 3013. 2. Cruikshank and Kealey, ‘Strikes in Canada’, 105–9. 3. The militia was called out on the following strikes: the coal mines in Springhill, Glace Bay, and Inverness in 1909; the GTR running trades strike and the steel strike against the Lake Superior Company in Sault Ste Marie in 1910; the 1911 Prince Rupert municipal labourers’ strike; and the 1913 strikes in the Vancouver Island coalfields and on the street railways in Halifax, Port Arthur and Fort William, and Saint John. In the Sault Ste Marie and Prince Rupert strikes the IDIA did not apply, and in the remaining strikes where it applied, it was not invoked at Inverness

324

4.

5. 6. 7.

8.

9.

10.

11.

12. 13. 14.

NOTES

and on Vancouver Island. Notably, in both those strikes, William Mackenzie and Donald Mann, who controlled the Canadian National Railway, also controlled the mining companies that were being struck. ‘Confidential Memorandum re Lethbridge Strike’, NAC, King Papers, MG 26, J 4, vol. 13; W.M. Baker, ‘The Miners and the Mediator: The 1906 Lethbridge Strike and Mackenzie King’, L/LT 11 (1983): 89–117. LG (Dec. 1906): 647, 661. Industrial Disputes Investigation Act, S.C. 1907, c. 20. Frank, J.B. McLachlan, 66. The IDIA was amended in 1925 to require employers to apply for a conciliation board as a prerequisite for changing the terms and conditions of employment. S.C. 1925, c. 14. Canada, House of Commons Debates (19 Feb. 1906–7), 3323–4; F.A. Acland, ‘Canadian Labor Legislation Concerning Industrial Disputes’, Annals of the American Academy of Political and Social Sciences 69 (1919): 157, 167; Commission on Industrial Relations (Walsh Commission), Final Report and Testimony, vol. 1 (Washington, 1916), 716; Benjamin M. Squires, ‘Operation of the Industrial Disputes Investigation Act of Canada’, US Dept. of Labor, Bureau of Statistics, Conciliation and Arbitration Series, No. 6 (Washington, 1918), 132–5. Adam Shortt, ‘The Canadian Industrial Disputes Act’, American Economic Publications, Third Series 10 (Apr. 1909): 159, 161–2; Victor S. Clark, Bulletin of the U.S. Bureau of Labor, No. 76 (1908), 666; B.M. Selekman, Postponing Strikes (New York, 1927), 106–9, 123–4; William Steward Martin, ‘A Study of Legislation Designed to Foster Industrial Peace in the Common Law Jurisdictions of Canada’, Ph.D. thesis (University of Toronto, 1954), 229; Jeremy Webber, ‘Standards of Industrial Justice: Ideology and the Reports of Conciliation Boards under the Industrial Disputes Investigation Act, 1907–1925’, LL.M. thesis (York University, 1988), 61–3; Barry Ferguson, Remaking Liberalism: The Intellectual History of Adam Shortt, O.D. Skelton, W.C. Clark, and W.A. Mackintosh, 1890–1925 (Montreal and Kingston, 1993), 121–4. Fourth Report of the Registrar of Boards of Conciliation and Investigation of the Proceedings under the Industrial Disputes Investigation Act for the fiscal year ending March 31, 1911 (Ottawa, 1911), 17; Selekman, Postponing Strikes, 104–10, 123–5. Three involved the boot and shoe industry, and the fourth occurred during a strike at a Valleyfield cotton mill where provincial and federal conciliation services had previously been used to resolve disputes. Russell, Back to Work?, 106–11, 115–17. Selekman, Postponing Strikes, 184, 185–9. Webber, ‘Standards of Industrial Justice’, 75–6; Craven, ‘An Impartial Umpire’, 296–7; Selekman, Postponing Strikes, 100–2.

N OT E S

325

15. Jeremy Webber, ‘The Mediation of Ideology: How Conciliation Boards, Through the Mediation of Particular Disputes, Fashioned a Vision of Labour’s Place within Canadian Society’, Law in Context 7 (1989): 10. 16. Jeremy Webber, ‘Living Wage and Living Profit: Wage Determination by Conciliation Boards under the Industrial Disputes Investigation Act, 1907–1925’, in W. Wesley Pue and Barry Wright, eds, Canadian Perspectives on Law and Society: Issues in Law and History (Ottawa, 1988), 232. 17. Webber, ‘Standards of Industrial Justice’, 60–192, 263–74. 18. Ibid., 193–9, 193 n. 19. Craven, ‘An Impartial Umpire’, 308, citing IC (Feb. 1908): 555; (Aug. 1908): 22; B.M. Selekman, Industrial Disputes and the Canadian Act (New York, 1917), 4–5. 20. Martin, ‘A Study of Legislation Designed to Foster Industrial Peace’, 236; Selekman, Industrial Disputes and the Canadian Act, 4, 6; Craven, ‘An Impartial Umpire’, 312–17; H.A. Logan, Trade Unions in Canada (Toronto, 1948), 451, 453 n. 9; Selekman, Postponing Strikes, 155; TLC, Proceedings (1911), 14, 24 ff., 63, 88, 91. 21. Avery, Reluctant Host, 43–59; W. Peter Ward, White Canada Forever: Popular Attitudes and Public Policy towards Orientals in British Columbia (Montreal, 1978), ch. 4; Patricia E. Roy, A White Man’s Province: British Columbia Politicians and Chinese and Japanese Immigrants, 1858–1914 (Vancouver, 1976), ch. 3. 22. Avery, Reluctant Host, 31. 23. J.H. Tuck, ‘Canadian Railways and Unions in the Running Trades, 1865–1914’, Relations Industrielles 36 (1981): 103–31. 24. Squires, ‘Operation of the Industrial Disputes Investigation Act of Canada’, 56; Selekman, Industrial Disputes and the Canadian Act, 19; Russell, Back to Work?, 109. 25. Craven, ‘An Impartial Umpire’, 321–3; J.H. Tuck, ‘Union Authority, Corporate Obstinacy and the Grand Trunk Railway Strike of 1910’, Canadian Historical Association (hereafter CHA), Historical Papers (1976): 175–91; LG (Aug. 1910): 194–209. 26. LG (Aug. 1910), 197–8; J.H. Tuck, ‘Canadian Railways and the International Brotherhoods: Labour Organization in the Railway Running Trades in Canada, 1865–1914’, Ph.D. thesis (University of Western Ontario, 1975), 337–9; Craven, ‘An Impartial Umpire’, 325. 27. LG (Aug. 1910): 197; OA, RG 4–32, file 1910/1032, telegram from L.W. March, Mayor, Belleville, to Foy, A.G. Ont., 22 July 1910, and response from Cartwright, Deputy A.G.; LG (Aug. 1910): 197; Craven, ‘An Impartial Umpire’, 324–7; Tuck, ‘Canadian Railways and the International Brotherhoods’, 337–43.

326

NOTES

28. Tuck, ‘Canadian Railways and the International Brotherhoods’, 371–93. 29. LG (Aug. 1908): 152–60; (Sept. 1908): 281, 336–7, 339–40; (Oct. 1908): 442–4; (Nov. 1908): 506, 526–9; Warren Caragata, Alberta Labour (Toronto, 1979), 15–16; James R. Conley, ‘Frontier Labourers, Crafts in Crisis and the Western Labour Revolt: The Case of Vancouver, 1900–1919’, L/LT 23 (Spring 1989): 25; NAC, MG 29, A 15, A.W. Wright Papers, clippings book, 1908. 30. Avery, Reluctant Host, 30, 31. 31. Halifax, 1907: LG (July 1907), 101; (Aug. 1907): 180, 229–30, 233; Owen Sound, 1909: LG (June 1909): 1370, 1373, 1375; (July 1909): 88–90; Fort William, 1909: LG (Sept. 1909): 341–9, 382, 385, 387; Fort William, 1912: LG (Dec. 1912): 655, 657; (Jan. 1913): 774, 776; (Feb. 1913): 895, 896. Avery, Reluctant Host, 61; Jean Morrison, ‘Ethnicity and Violence: The Lakehead Freight Handlers Before World War I’, in Gregory S. Kealey and Peter Warrian, eds, Essays in Canadian Working Class History (Toronto, 1976), 143–69; Antonio Pucci, ‘Thunder Bay’s Italian Community, 1880’s–1940’s’, in John Potestio and Pucci, eds, The Italian Immigrant Experience (Thunder Bay, 1988), 79–102; Jean Morrison, ‘Ethnicity and Violence: Southern Europeans in Strikes on Thunder Bay’s Waterfront Before W.W.I’, in Potestio and Pucci, eds, The Italian Immigrant Experience, 103–18; Thomas F. Beasely, ‘The 1909 Freight Handlers’ Strike: Col. Sam Steele Searches Strikers for Guns’, Thunder Bay Historical Museum Society, Papers and Records 17 (1989): 18–24; Antonio Pucci, ‘The Italian Community in Fort William’s East End in the Early Twentieth Century’, MA thesis (Lakehead University, 1977). 32. LG (June 1908): 1471, 1473, 1475; (Sept. 1909): 382, 385, 387; (Aug. 1912): 189, 190; (Aug. 1912), 130–8; (Sept. 1912): 272, 274. 33. LG (June 1909): 1379, 1373, 1375; (July 1909): 88–90; (Aug. 1912): 130. 34. LG (Sept. 1909): 341–9, 382, 385, 387; (Aug. 1912), 130. 35. Cartwright, the Deputy A.G., John Armstrong, the county Crown attorney, Foy, the A.G., OA, RG 4–32, file 1908/653. 36. LG (Oct. 1909): 519; OA, RG 22, 392–0–5900, #154. 37. Daily News, 10 Oct. 1912. 38. A. Ross McCormack, ‘Wobblies and Blanketstiffs: The Constituency of the IWW in Western Canada’, in W.J.C. Cherwinski and Gregory S. Kealey, eds, Lectures in Canadian Labour and Working-Class History (St John’s, 1985), 109–14; Donald Avery, ‘Canadian Immigration Policy and the “Foreign” Navvy, 1896–1914’, in Michael S. Cross and Gregory S. Kealey, eds, The Consolidation of Capitalism, 1896–1929 (Toronto, 1983), 57; Mark Leier, Where the Fraser River Flows: The Industrial

N OT E S

39. 40. 41. 42.

43.

44.

45.

46. 47. 48.

327

Workers of the World in British Columbia (Vancouver, 1990), 45–53; Carlos Schwantes, Radical Heritage: Labor, Socialism and Reform in Washington and British Columbia, 1885–1917 (Seattle, 1979), 187; Frank Leonard, A Thousand Blunders: The Grand Trunk Railway and Northern British Columbia (Vancouver, 1996), 123–4; LG (Aug. 1912): 129. A. Ross McCormack, ‘The Industrial Workers of the World in Western Canada, 1905–1914’, CHA Historical Papers (1975): 179. McCormack, ‘Wobblies and Blanketstiffs’, 113; Leier, Where the Fraser River Flows, 51. Barbara Roberts, Whence They Came: Deportation from Canada, 1900– 1935 (Ottawa, 1988), 72–3; IC (Sept. 1913): 183; (Aug. 1913): 61. Stuart Marshall Jamieson, Times of Trouble: Labour Unrest and Industrial Conflict in Canada, 1900–1966 (Ottawa, 1968), 95; Cruikshank and Kealey, ‘Strikes in Canada’, 98; Russell, Back to Work?, 108–9, 120. Kirby Abbott, ‘The Coal Miners and the Law in Nova Scotia: From the 1864 Combination of Workmen Act to the 1947 Trade Union Act’, in Michael Earle, ed., Workers and the State in Twentieth Century Nova Scotia (Fredericton, 1989), 25, 29; Ross McCormack, ‘The Western Working-Class Experience’, in Cherwinski and Kealey, eds, Lectures in Canadian Labour and Working-Class History, 119; Eugene Forsey, Economic and Social Aspects of the Nova Scotia Coal Industry (Montreal: McGill University Economic Studies in the National Problems of Canada, 1926), No. 5, 5; Ian McKay, ‘Strikes in the Maritimes, 1901– 1914’, Acadiensis 13 (Autumn 1983): 21; Paul MacEwan, Miners and Steelworkers (Toronto, 1976), 6. Allen Seager, ‘A Proletariat in Wild Rose Country: The Alberta Coal Miners, 1905–1945’, Ph.D. thesis (York University, 1981), 24, 30, 204, 218–22, 223–5, 237–42, 246–53; Felske, ‘Studies in the Crow’s Nest Pass Coal Industry from its Origins to the End of World War I’, Ph.D. thesis (University of Toronto, 1991), 366–70, 380–5, 401–4. LG (Oct. 1907): 412; (Dec. 1907): 679–83; (July 1908): 57; (Oct. 1908): 405; (July 1908): 57; (June 1908): 1452–4; Provincial Archives of Alberta (PAA), Acc. No. 83.1/1311, information laid by Henry Patterson, 7 Apr. 1908, before G.G. Downs, Police Magistrate. LG (Aug. 1911): 154–6, 169–70; (Dec. 1911), 543. John Mellor, The Company Store: James Bryson McLachlan and the Cape Breton Miners, 1900–1925 (Toronto, 1983), 27; LG (Apr. 1909): 1029. McKay, ‘Strikes in the Maritimes’, 27, 42; Ian McKay, ‘The Provincial Workmen’s Association: A Brief Survey of Several Problems of Interpretation’, in Cherwinski and Kealey, eds, Lectures in Canadian Labour and Working-Class History, 129; Forsey, Economic and Social Aspects of the Nova Scotia Coal Industry, 20–1; MacEwan, Miners and Steel-

328

49.

50. 51.

52.

53.

54. 55. 56.

NOTES

workers, 23–38; David Frank, ‘Industrial Democracy and Industrial Legality: The UMWA in Nova Scotia, 1908–1927’, in John H.M. Laslett, ed., The United Mineworkers of America (University Park, Penn., 1996), 438–58; Report of the Deputy Minister of Labour on Industrial Conditions in the Coal Fields of Nova Scotia, 9–10 Edward VIII 1909, Sessional Papers No. 36a (hereafter Acland Report); LG (May 1907): 1241–2, 1299, 1305; (July 1907): 101, 104; (Aug. 1907): 174–8, 229, 232; (June 1908): 1471–2. Acland Report, 21; Forsey, Economic and Social Aspects of the Nova Scotia Coal Industry, 24; The Dominion Coal Co. v. Boustead (1910), 8 E.L.R. 145; The Cumberland Coal and Railway Co. v. McDougall (1910), 44 N.S.R. 535; Cumberland Railway and Coal Company v. McDougall (1911), 9 E.L.R. 289; The King v. Elderman (1911), 19 C.C.C. 445; LG (Mar. 1910): 1069; The King v. Neilson (1910), 17 C.C.C. 298. Acland Report, 22–3; LG (Apr. 1910): 1069; (May 1910): 1334; (Nov. 1910): 533. Forsey, Economic and Social Aspects of the Nova Scotia Coal Industry, 27; W.M. Baker, ‘The Personal Touch: Mackenzie King, Harriet Reid, and the Springhill Strike’, L/LT 13 (Spring 1984): 160; LG (Apr. 1911): 1147–48, 1150; (May 1911): 1295–6, 1298; (June 1911): 1427–8, 1432; McKay, ‘Strikes in the Maritimes’, 39; Ian Alexander Andrews, ‘Military Aid to the Civil Power: The Cape Breton Coal Strike of 1910–1911’, MA thesis (University of New Brunswick, 1987). Paul Phillips, No Power Greater: A Century of Labour in BC (Vancouver, 1967), 55–61; Lynne Bowen, Boss Whistle: The Coal Miners of Vancouver Island (Lantzville, BC, 1982), 131–98; Schwantes, Radical Heritage, 202–5; Lynne Stonier-Newman, Policing a Pioneer Province (Madeira Park, BC, 1991), 101–7; Lynne Bowen, ‘The Great Vancouver Island Coal Miners’ Strike, 1912–1914’, Journal of the West 23, 4 (1984): 33–9; David Ricardo Williams, Call In Pinkertons: American Detectives at Work for Canada (Toronto, 1998). LG (Sept. 1913): 305; R.H. Roy, ‘The Seaforths and the Strikers: Nanaimo, August 1913’, BC Studies, 43 (1979): 81; LG (Nov. 1913): 638; P.G. Silverman, ‘Aid to Civil Power: The Nanaimo Coal Miners’ Strike, 1912–1914’, Canadian Defense Quarterly 14 (1974): 16–52; Bowen, Boss Whistle, 131–98; Mike O’Brien, ‘Manhood and the Militia Myth: Masculinity, Class and Manhood in Ontario, 1902–1914’, L/LT 42 (Fall 1998): 115–41. LG (Oct. 1913), 432–5. LG (Feb. 1914), 950. Webber, ‘Standards of Industrial Justice’, n. 31; LG (June 1907): 1418–19; British Columbia Copper Co. (21/5/09), AR, 09–10, Sess.

N OT E S

57.

58.

59.

60.

61.

62. 63. 64.

329

Paper, 36, 22, 27, 29; OA, RG 4–32, file 1907/996, police magistrate’s request for provincial assistance; for the 1912 Porcupine strike, OA, RG 4–32, file 1912/1723, correspondence between agent and police superintendent; OA, RG 4–32, file 1913/440; Dahn D. Higley, OPP: The History of the Ontario Provincial Police Force (Toronto, 1954), 88–9; Charlie Angus and Brit Griffin, We Lived a Life and Then Some: The Life, Death, and Life of a Mining Town (Toronto, 1996); LG (Aug. 1907): 241–2; Ottawa Free Press, 27 Sept. 1907; Rex v. McGuire (1908), 16 O.L.R. 522; OA, RG 4–32, files 1907/969, 1907/1393; LG (Nov. 1907): 621; (Jan. 1913): 800; Rex v. Holowaskawe, Rex v. Groft, Rex v. Cleary (1913), 24 C.C.C. 224; OA, RG 4–32, file 1914/179. LG (June 1903): 1023–6; (June 1907): 1412–15; (Sept. 1907): 344–5; (Dec. 1911): 565–7, 608; Stuart Jamieson, Times of Trouble: Labour Unrest and Industrial Conflict in Canada, 1900–1966 (Ottawa, 1968), 81–3; Robert H. Babcock, ‘Saint John Longshoremen During the Rise of Canada’s Winter Port, 1895–1922’, L/LT 25 (Spring 1990): 15–46; John Chisholm, ‘Organizing on the Waterfront: The St John’s Longshoremen’s Protective Union (LSPU), 1890–1914’, L/LT 26 (1990): 35–9. Babcock, ‘Saint John Longshoremen’, 42; LG (Dec. 1913), 655; In the matter of the IDI Act, 1907 and the Dispute between the Longshoremen of the Port of Saint John (1914), 42 N.B.R. 434; Webber, ‘Standards of Industrial Justice’, 179 n. 178, 249–50, 274. Robert H. Babcock, ‘The Saint John Street Railwaymen’s Strike and Riot, 1914’, Acadiensis 11 (Spring 1982): 3–37; Patricia Roy, ‘The British Columbia Electric Railway and Its Street Railway Employees: Paternalism in Labour Relations’, BC Studies 16 (1972–3): 3–24; Peter Lambly, ‘Working Conditions and Industrial Relations in Canada’s Street Railways, 1900–1920’, MA thesis (Dalhousie University, 1983). S.O. 1906, c. 31; Margaret Mackintosh, ‘Government Intervention in Labour Disputes in Canada’, Bulletin of the Depts of History and Political and Economic Science in Queen’s University No. 47 (Feb. 1924): 4–5. Webber, ‘Standards of Industrial Justice’, n. 162, n. 169, 176, 192, 199; Lambly, ‘Working Conditions and Industrial Relations in Canada’s Street Railways’, 66. Selekman, Postponing Strikes, 272–3. LG (June 1913): 1417, 1420; (July 1913): 88, 90. Jacques Ferland, ‘ “In Search of Unbound Promethea”: A Comparative View of Women’s Activism in Two Quebec Industries, 1869–1908’, L/LT 24 (Fall 1989): 11–41; Ferland, ‘Syndicalisme “parcellaire” et syndicalisme “collectif” ’, 74–6; Jacques Rouillard, Les Travaileurs du Coton du Québec, 1900–1915 (Montreal, 1974), 110–11; Gendron, ‘Industrial Development and Labour Unrest’, 78–81; LG (Oct. 1900):

330

65.

66. 67. 68.

69.

70. 71. 72.

NOTES

68–9; (Nov. 1900): 101–3; Aaron James McCrorie, ‘Legislation and Investigation: Royal Commissions and the Canadian State’s Response to Labour’s Revolt’, MA thesis (University of Regina, 1993), 99–105. Cotton Factories Industrial Dispute, Canada, House of Commons, Sessional Papers No. 39 (1909); Gail Cuthbert Brandt, ‘Weaving it Together: Life Cycle and the Industrial Experience of Women Cotton Workers in Quebec, 1910–1950’, L/LT 7 (1981): 121. Cotton Factories Industrial Dispute, 22. LG (Apr. 1906): 1177; (July 1906): 73–4, 77; (Aug. 1906): 170, 172; (Sept. 1907): 303–4, 330, 335–8. Glen Makahonuk, ‘Craft Unionism and the 1912 Strike Wave’, Saskatchewan History 44, 2 (1992): 59–67; James R. Conley, ‘Frontier Labourers, Crafts in Crisis, and the Western Labour Revolt: The Case of Vancouver, 1900–1919’, L/LT 23 (1989): 9–37; James R. Conley, ‘Open Shop Means Closed Shop to Union Men: Carpenters and the 1911 Vancouver Building Trades General Strike’, BC Studies 19 (1991–2): 145–8; Ian McKay, The Craft Transformed (Halifax, 1981), 59–63; Wayne Roberts, ‘Artisans, Aristocrats and Handymen: Politics and Trade Unionism Among Skilled Toronto Building Trades Workers, 1896–1914’, L/LT 1 (1976): 95–6; Gerry Berkowski, ‘A Tradition in Jeopardy: Building Trades Workers’ Responses to Industrial Capitalism in Winnipeg, 1880–1914’, MA thesis (University of Winnipeg, 1986), 167–96; LG (May 1910): 1327, 1329; (June 1910): 1437–40. Avery, Reluctant Host, 70; Ruth A. Frager, Sweatshop Strife: Class, Ethnicity, and Gender in the Jewish Labour Movement of Toronto, 1900–39 (Toronto, 1992), 12–31; Mercedes Steedman, Angels of the Workplace: Women and the Construction of Gender Relations in the Canadian Clothing Industry, 1890–1940 (Toronto, 1997), 53–93; Wayne Roberts, Honest Womanhood: Feminism, Feminity and Class Consciousness Among Toronto Working Women, 1896–1914 (Toronto, 1976), 37–42, 7; Susan Gelman, ‘Anatomy of a Failed Strike: The T. Eaton Company Lockout of Cloakmakers—1912’, Canadian Jewish Historical Society Journal 9 (1985): 93–119; NAC, RG 27, vol. 300, clippings file, strike 3509; LG (Mar. 1910): 1063, 1064; (Apr. 1910): 1183, 1195; (May 1910): 1326, 1328, 1337; (July 1910): 131; (July 1912): 81, 83; (Aug. 1912): 185, 187, 199. Mark Leier, ‘Solidarity on Occasion: The Vancouver Free Speech Fights of 1910 and 1912’, L/LT 23 (Spring 1989): 39–66. Phillips, No Power Greater, 52–3: Caragata, Alberta Labour, 48. David Schulze, ‘The Industrial Workers of the World and the Unemployed in Edmonton and Calgary in the Depression of 1913–1915’, L/LT 25 (Spring 1990): 47–75; David Bright, ‘Loafers Are Not Going to

N OT E S

73. 74.

75. 76.

77. 78. 79.

331

Subsist on Public Credulence: Vagrancy and the Law in Calgary, 1900– 1914’, L/LT 33 (Fall 1995): 37–58. Leier, ‘Solidarity on Occasion’, 63. Mark Leier, ‘Ethnicity, Urbanism and the Labour Aristocracy: Rethinking Vancouver Trade Unionism, 1889–1909’, Canadian Historical Review 85, 4 (1993): 533; McKay, The Craft Transformed, 51–4; Roberts, ‘Artisans, Aristocrats and Handymen’, 96–8; Berkowski, ‘A Tradition in Jeopardy’, 189–96. TLC, Proceedings (1913), 109; (1914), 126. Ibid. (1906), 44, 61; (1907), 71; (1909), 10–11; (1910), 48; (1914), 125–6; Christopher J. Anstead, ‘Patriotism and Camaraderie: Workingmen in a Peacetime Militia Regiment, 1907–1954’, Social History 26, 52 (1993): 249, 250 n. 6. OA, RG 4–32, file 1907/996, file 1914/179, file 1908/653, file 1914/1914; NAC, RG 27, vol. 300, strike 3618; NAC, RG 27, vol. 303, strike 9. TLC, Proceedings (1908), 23; (1909), 68; (1914), 87, 93. Roberts, Whence They Came, 72–3.

Chapter 4 1. Jack J. Roth, ed., World War I: A Turning Point in Modern History (New York, 1967); Robert Craig Brown and Ramsay Cook, Canada 1896–1921 (Toronto, 1974); War Measures Act, S.C. 1914 (2nd Sess.) c. 2 (assented to 22 Aug. 1914); F. Murray Greenwood, ‘The Drafting of the War Measure Act in 1914 and 1927: Object Lessons in the Need for Vigilance’, in Pue and Wright, eds, Canadian Perspectives on Law and Society, 291–327. 2. Myer Semiatycki, ‘Labour Contained: The Defeat of a Rank and File Workers’ Movement in Canada 1914–1921’, Ph.D. thesis (York University, 1986); Craig Heron, ‘National Contours: Solidarity and Fragmentation’, in Heron, ed., The Workers’ Revolt in Canada, 1917–1925 (Toronto, 1998), 268–304; Chad Reimer, ‘War, Nationhood and Working-Class Entitlement: The Counterhegemonic Challenge of the 1919 Winnipeg General Strike’, Prairie Forum 18 (1993): 219–37. 3. Heron, ed., Workers’ Revolt; Larry Peterson, ‘The One Big Union in International Perspective: Revolutionary Industrial Unionism 1900–1925’, L/LT 7 (1981): 63–6; James Naylor, The New Democracy (Toronto, 1991), 129–55. 4. Janice Newton, The Feminist Challenge to the Canadian Left, 1900–1918 (Montreal, 1995), 78–109, 150–60; Bob Russell, ‘A Fair or a Minimum Wage? Women Workers, the State, and the Origins of Wage Regulation in Western Canada’, L/LT 28 (1991): 59–88; Linda Kealey,

332

5.

6.

7.

8.

NOTES

‘Women and Labour during World War I: Women Workers and the Minimum Wage in Manitoba’, in Mary Kinnear, ed., First Days, Fighting Days (Regina, 1987), 76–99; Margaret McCallum, ‘Keeping Women in Their Place: The Minimum Wage in Canada, 1910–25’, L/LT 17 (1986): 29–56; Veronica Strong-Boag, ‘The Girl of the New Day: Canadian Working Women in the 1920s’, L/LT 4 (1979): 158–63; Ceta Ramkhalawansingh, ‘Women during the Great War’, in Janice Acton, Penny Goldsmith, and Bonnie Shepard, eds, Women at Work (Toronto, 1974), 261–307. LG (Oct. 1914): 474–5; McCormack, Reformers, Rebels, and Revolutionaries, 118–24; Naylor, New Democracy, 19–23, 44–5; Martin Robin, Radical Politics and Canadian Labour (Kingston, 1968), 119–20; Seager, ‘Proletariat in Wild Rose Country’, 272–4, 293–4; R. v. Bainbridge (1918), 28 C.C.C. 444 (Riddell J.). F.H. Leacy, ed., Historical Statistics of Canada, 2nd edn (Ottawa, 1983), E–175; Cruikshank and Kealey, ‘Strikes in Canada’, 97, 136; Russell, Back to Work?, 151, 160; Labor News (Hamilton), 4, 13 June 1915. Gregory S. Kealey, ‘State Repression of Labour and the Left in Canada, 1914–20: The Impact of the First World War’, Canadian Historical Review 73 (1992): 284–92; Jeff Keshen, ‘All the News That Was Fit to Print: Ernest J. Chambers and Information Control in Canada, 1914–1919’, Canadian Historical Review 73 (1992): 315–43; Jonathan Swainger, ‘Wagging Tongues and Empty Heads: Seditious Utterances and the Patriotism of Wartime in Central Alberta, 1914–1918’, in Louis A. Knafla and Susan W.S. Binnie, eds, Law, Society and the State (Toronto, 1995), 278; OA, RG 22, series 392, box 97, R. v. Cassidy; OA, RG 23, series E–63, box 1; James R. Carruthers, ‘The Great War and Canada’s Enemy Alien Policy’, Queen’s Law Journal 4 (1978): 43–110; Avery, Reluctant Host, 71–3; Brown and Cook, Canada, 224–7; Peter Melnycky, ‘The Internment of Ukrainians in Canada’, in Frances Swyripa and John Herd Thompson, eds, Loyalties in Conflict (Edmonton, 1983), 1–24. Craven, ‘An Impartial Umpire’, 190–3; William David Atkinson, ‘Organized Labour and the Laurier Administration: The Fortunes of a Pressure Group’, MA thesis (Carleton University, 1957), 127–32; Canada, Orderin-Council PC 680 (23 Mar. 1916); D.J. Bercuson, ‘Organized Labour and the Imperial Munitions Board’, Relations Industrielles 28 (1973): 602–16; Myer Siemiatycki, ‘Munitions and Labour Militancy: The 1916 Hamilton Machinists’ Strike’, L/LT 3 (1978): 132–7; Naylor, New Democracy, 24–7; Michael Bliss, A Canadian Millionaire (Toronto, 1978), 320–5; The Fair Wage Act, 1916, S.M. 1916, c. 121; David Jay Bercuson, Confrontation at Winnipeg, rev. edn (Montreal, 1990), 47–8.

N OT E S

333

9. A.B. Garretson, ‘The Attitude of Organized Labor Toward the Canadian Industrial Disputes Investigation Act’, Annals of the American Academy of Political and Social Science 69 (Jan. 1917): 170–1; Selekman, Postponing Strikes, 220–42. 10. TLC, Report of Proceedings (1916), 106–15, 128–32, 136; Selekman, Postponing Strikes, 162–7, 196–7; Brian F. Hogan, Cobalt: Year of the Strike, 1919 (Cobalt, Ont., 1978), 24–9; LG (Sept. 1916): 1558–9; (Oct. 1916): 1632–8. 11. ‘Report of Commissioners Appointed by the Minister of Labour to Inquire into Certain Concerns in Toronto and Hamilton’, LG (June 1916): 1295–7; Siemiatycki, ‘Munitions and Labour Militancy’, and Siemiatycki, ‘Labour Contained’, 71–3. 12. David Edward Smith, ‘Emergency Government in Canada and Australia 1914–1919: A Comparison’, Ph.D. thesis (Duke University, 1964), 151–2; Naylor, New Democracy, 28–30. 13. Craig Heron, Working in Steel (Toronto, 1988), 129–38; LG (Dec. 1917): 984; Russell, Back to Work?, 144; Selekman, Postponing Strikes, 251–3; Peter McGinnis, ‘All Solid Along the Line: The Reid Newfoundland Strike of 1918’, L/LT 26 (1990): 61–84. 14. Paul MacEwan, Miners and Steelworkers (Toronto, 1976), 39–53; LG (June 1917): 451–5; Jamieson, Times of Trouble, 161–2; David Frank, ‘The Cape Breton Coal Miners, 1917–1926’, Ph.D. thesis (Dalhousie University, 1979), 297–301; McCrorie, ‘Legislation and Investigation’, 125–8; S.N.S. 1917, c. 10. 15. Canada, Order-in-Council PC 1725 (25 June 1917); LG (Aug. 1917): 613–14; Seager, ‘Proletariat in Wild Rose Country’, 279–93; Lorry William Felske, ‘Studies in the Crow’s Nest Pass Coal Industry from its Origins to the End of World War I’, Ph.D. thesis (University of Toronto, 1991), 411–19; Siemiatycki, ‘Labour Contained’, 72–94, 113–21; Jamieson, Times of Trouble, 162–3; Williams and Rees v. Local Union No. 1562 of the U.M.W.A. (1919), 45 D.L.R. 150 (Alta. C.A.), 151–9. 16. Stanley Scott, ‘A Profusion of Issues: Immigrant Labour, World War, and the Cominco Strike of 1917’, L/LT 2 (1977): 54–78; Jeremy Mouat, Roaring Days (Vancouver, 1995), 160–2; Susan Mayse, Ginger (Madeira Park, BC, 1990), 119–35; LG (Aug. 1917), 617. 17. Bercuson, Confrontation at Winnipeg, 50–7; LG (Aug. 1917): 609, 612; TLC, Proceedings (1917), 45–6, 193–5; Bryce M. Stewart, Canadian Labor Laws and the Treaty (New York, 1968 [1926]), 147–50; Donald Avery, ‘The Radical Alien and the Winnipeg General Strike’, in Carl Berger and Ramsay Cook, eds, The West and the Nation (Toronto, 1976), 214–15; Kealey, ‘Women and Labour’, 86–7; OA, RG 7–12–0–37.

334

NOTES

18. Ian McKay, The Craft Transformed (Halifax, 1985), 64; NAC, RG 27, vol. 306, strikes 74A (New Brunswick plumbers) and 34 (Montreal garment workers); Geoffrey Ewen, ‘Quebec: Class and Ethnicity’, in Heron, ed., Workers’ Revolt, 99; OA, RG 4–32, file 1917/2272 (North Pines Nickel Mine); Labor News (Hamilton), 7 Sept. 1917 (Toronto); OA, RG 4–32, file 1917/2742 (injunctions). 19. Leslie H. Boyd, KC, was appointed director of grain elevator operations in response to a strike by 650 elevator employees. LG (Nov. 1917): 908; Smith, ‘Emergency Government’, 151. 20. James Foy, ‘Gideon Robertson: Conservative Minister of Labour 1917–1921’, MA thesis (University of Ottawa, 1972), 11–55; Siemiatycki, ‘Labour Contained’, 160–2; Selekman, Postponing Strikes, 245–50. 21. Bureau of Labor Act, S.M. 1915, c. 6 repealed and replaced by S.M. 1916, c. 13; The Trades and Labour Branch Act, S.O. 1916, c. 13 as amended by S.O. 1917, c. 15; Department of Labour Act, S.B.C. 1917, c. 32; Underhill, ‘Labor Legislation in British Columbia’, 258–60. 22. Military Service Act, S.C. 1917, c. 19 (royal assent on 29 Aug. 1917); Martin Robin, ‘Registration, Conscription, and Independent Labour Politics, 1916–17’, Canadian Historical Review 47 (1966): 101–18; McCormack, Reformers, Rebels, and Revolutionaries, 124–32; LG (Oct. 1917): 842–3, 846–9; Naylor, New Democracy, 44–5. 23. McCormack, Reformers, Rebels, and Revolutionaries, 130–1; Kealey, ‘State Repression’, 292; David Schulze, ‘The Industrial Workers of the World and the Unemployed in Edmonton and Calgary in the Depression of 1913–15’, L/LT 25 (1990): 47–75; Leier, Where the Fraser River Flows, 116–19; Cecilia Danysk, Hired Hands: Labour and the Development of Prairie Argriculture, 1880–1930 (Toronto, 1995), 106–8; Roberts, Whence They Came, 72–9; Henry F. Drystek, ‘ “The Simplest and Cheapest Mode of Dealing with Them”: Deportation from Canada before World War II’, Histoire Sociale 30 (1982): 421; Labor News (Hamilton), 12 Oct. 1917. 24. Margaret Prang, N.W. Rowell: Ontario Nationalist (Toronto, 1975), 233–4; Naylor, New Democracy, 34–5; Canada, House of Commons Debates (22 Apr. 1918), 985. 25. Canada, Parliament, ‘Memorandum of the Conferences Between Representatives of Labour and the War Committee, January, 1918’, Sessional Papers No. 78 (1918); Selekman, Postponing Strikes, 245–51; Naylor, New Democracy, 36–7; Canadian Association of Administrators of Labour Law, Proceedings (Department of Labour of Canada, 1939), 72–4.

N OT E S

26.

27.

28.

29.

30.

31. 32. 33. 34. 35.

335

S.C. 1918, c. 27; Canada, House of Commons Debates (17 Apr. 1918), 839; TLC, Proceedings (1918), 35, 78–9; Selekman, Postponing Strikes, 243–66. NAC, G.D. Robertson to N.W. Rowell, T.W. Crothers, C.J. Doherty, 20 Feb. 1918, cited in Gregory S. Kealey, ‘The Surveillance State: The Origins of Domestic Intelligence and Counter-Subversion in Canada, 1914–21’, Intelligence and National Security 7 (1992): 182–3; OA, RG 23, Series E–30, file 1.6, J.E. Rogers to A.J. Cawdren, 16 Apr. 1918; A.J. Cawdren to Deputy Minister of Justice, 19 Apr. 1918. Canada, Order-in-Council PC 807 (3 Apr. 1918); LG (June 1918): 378–9; R. v. Ruttka, [1918] 2 W.W.R. 788 (Alta. C.A.); Labor News (Hamilton), 10 May 1918; Siemiatycki, ‘Labour Contained’, 220; G. Jewell, The History of the IWW in Canada (Chicago, n.d.); OA, RG 7–12–0–5, Tom Moore to Dr Riddell, Trades and Labour Branch, 3 Oct. 1918; Barbara Roberts, ‘ “Shovelling Out the Mutinous”: Political Deportation from Canada before 1936’, L/LT 18 (1986): 79. McCormack, Reformers, Rebels, and Revolutionaries, 150–1; S.W. Horrall, ‘The Royal North-West Mounted Police and Labour Unrest in Western Canada, 1919’, Canadian Historical Review 61 (1980): 171; Kealey, ‘State Repression’, 303–5; Kealey, ‘Surveillance State’, 184; Canada, Order-in-Council PC 915 (16 Apr. 1918), in NAC, RG 2, vol. 1194. Cruikshank and Kealey, ‘Strikes in Canada’, 134; Prang, Rowell, 237; Seager, ‘Proletariat in Wild Rose Country’, 300–2. For other interventions, see Canada, House of Commons Debates (18 May 1918), 2236–7; Bercuson, Confrontation at Winnipeg, 58–65; Kealey, ‘State Repression’, 306–7; Foy, ‘Gideon Robertson’, 64–6. Canada, Order-in-Council PC 1743 (11 July 1918). Webber, ‘The Mediation of Ideology’, 1–23. Semiatycki, ‘Labour Contained’, 217–22. Canada, Order-in-Council PC 1832 (19 July 1918) in Canada Gazette (27 July 1918), 335; PC 2299 (19 Sept. 1918) in NAC, RG 2, vol. 1206. Canada, Order-in-Council PC 1768; LG (Aug. 1918): 981–3; Bercuson, Confrontation at Winnipeg, 69–72; Stephen G. Peitchinis, ‘LabourManagement Relations in the Railway Industry’, Task Force on Labour Relations, Study No. 20 (Ottawa, 1971), 101–12; Allen Seager, ‘ “A New Labour Era”?: Canadian National Railways and the Railway Worker, 1919–1929’, Journal of the Canadian Historical Association 3 (1992): 178–80; Russell, Back to Work?, 133; LG (Nov. 1918): 981–93; Mary MacKinnon, ‘New Evidence on Canadian Wage Rates, 1900–1930’, Canadian Journal of Economics 34 (1996): 114–31.

336

NOTES

36. Bill Doherty, Slaves of the Lamp (Victoria, 1991), 193–238; Glen Makahonuk, ‘Class Conflict in a Prairie City: The Saskatoon WorkingClass Response to Prairie Capitalism, 1906–19’, L/LT 19 (1987): 117–18. 37. Mayse, Ginger; Phillips, No Power Greater, 72–3; Scott, ‘Profusion of Issues’; Mark Leier, ‘Plots, Shots, and Liberal Thoughts: Conspiracy Theory and the Death of Ginger Godwin’, L/LT 39 (1997): 215–24. 38. Canadian Annual Review (1918): 332–6; Roy, ‘The British Columbia Electric Railway’, 16–17; Greg Marquis, Policing Canada’s Century: A History of the Canadian Association of Chiefs of Police (Toronto, 1993), 115–21; Marquis, ‘Police Unionism in Early Twentieth-Century Toronto’, Ontario History 81 (1989): 109–28; Horrall, ‘Royal NorthWest Mounted Police’, 172; Kealey, ‘State Repression’, 308. 39. Kealey, ‘Surveillance State’, 184–8. 40. Kealey, ‘State Repression’, 293–305; OA, RG 23, series E–30, 1.6, J.E. Rogers to F.H. Whitton, general manager, Steel Co. of Canada, 24 Feb. 1919. 41. OA, RG 7–12–0–5, Dr Riddell, Trades and Labour Branch, Department of Labour, to Tom Moore, 5 Oct. 1918. 42. Canada, Order-in-Council PC 2733 (7 Nov. 1918) and PC 2786 (13 Nov. 1918); Kealey, ‘Surveillance State’, 188–90; Prang, Rowell, 267–8; Horrall, ‘Royal North-West Mounted Police’, 173. 43. OA, RG 23, series E–63, box 1, Sherwood to J.E. Rogers, 2 Oct. 1918; OA, RG 23, series E–30, 1.6, 9 Oct. 1918, Rogers to division inspectors: ‘I do not want any of the men to get foul of labour organizations.’ 44. OA, RG 23, series E–30, 1.6, P. Sherwood to J.E. Rogers, 9 Oct. 1918. 45. Siemiatycki, ‘Labour Contained’, 222–5; Canada, Order-in-Council PC 2525 (11 Oct. 1918). 46. TLC, Proceedings (1919), 24–8; Siemiatycki, ‘Labour Contained’, 222–7; Kealey, ‘Surveillance State’, 192. 47. OA, RG 23, series E–30, 1.6, J.E. Rogers to A.J. Cawdron, 8 Jan. 1919; J.E. Rogers to F.H. Whitton, general manager, Canada Steel Co., 24 Feb. 1919; Kealey, ‘State Repression’, 300–2; James Naylor, ‘Southern Ontario: Striking at the Ballot Box’, in Heron, ed., Workers’ Revolt, 150.

Chapter 5 1.

OA, RG 4–32, file 1919/1390, Resolution, International Association of Machinists, District Council #46, 18 Dec. 1918. Also see Samuel Gompers, American Labor and the War (New York, 1919), 204. 2. Cruikshank and Kealey, ‘Strikes in Canada’. 3. E.g., Labor News (Hamilton), 29 Nov. 1918; OA, RG 4–32, file 1919/400 (R. v. Andrew Tretiak); William Rodney, Soldiers of the International (Toronto, 1968), 21.

N OT E S

4.

5.

6. 7.

8.

9.

10.

11.

12.

13.

337

OA, RG 32–4, file 1919/1390, W.R. Meredith to I.B. Lucas, 19 Dec. 1919; Ewen, ‘Quebec: Class and Ethnicity’, 101–3; Marquis, ‘Police Unionism’; Report of the Police Inquiry Commission, OA, RG 49–19, Sessional Paper 80, 1920. David J. Bercuson, Fools and Wise Men (Toronto, 1978), 68–86; McCormack, Reformers, Rebels, and Revolutionaries, 148–9, 157–8; Siemiatycki, ‘Labour Contained’, 297–320. Siemiatycki, ‘Labour Contained’, 248–53, 334–6; E. Parnell, ‘A Round Table Conference with Labor’, IC (Feb. 1919): 67–8. J.B. Hugg, KC, ‘Manitoba Labor Legislation, 1919’, IC (Apr. 1919): 55–6; Bercuson, Confrontation at Winnipeg, 103–5; Industrial Conditions Act, S.M. 1919, c. 43. Antony Alcock, History of the International Labor Organization (New York, 1971), 18–37; Canada, Order-in-Council PC 670 (4 Apr. 1919); Canada, House of Commons Debates (14 Apr. 1919), 1433. Siemiatycki, ‘Labour Contained’, 336–40. Canada, Orders-in-Council PC 702, 703 (2 Apr. 1919); S.C. 1919, c. 26, ss. 2, 15 amending S.C. 1910, c. 27; Leslie Katz, ‘Some Legal Consequences of the Winnipeg General Strike of 1919’, Manitoba Law Journal 4 (1970–1): 46–50; Canada, House of Commons Debates (1 May 1919), 1956. Gregory S. Kealey, ‘1919: The Canadian Labour Revolt’, L/LT 13 (1984): 11–44; Bercuson, Confrontation at Winnipeg; D.C. Masters, The Winnipeg General Strike (Toronto, 1950); Norman Penner, ed., Winnipeg 1919, 2nd edn (Toronto, 1975); J.M. Bumsted, ‘1919[:] The Winnipeg General Strike Reconsidered’, The Beaver 74, 3 (June-July 1994): 27–44; Tom Mitchell, ‘ “To Reach the Leadership of this Revolutionary Movement”: A.J. Andrews and the Suppression of the Winnipeg General Strike’, Prairie Forum 18 (1993): 239–55; Tom Mitchell and James Naylor, ‘The Prairies: In the Eye of the Storm’, in Heron, Workers’ Revolt, 176–230; Eric Angel, ‘Workers, Picketing and the Winnipeg General Strike of 1919’, MA thesis (Queen’s University, 1995). Kealey, ‘1919’, 28–33; Mitchell and Naylor, ‘The Prairies’; Tom Mitchell, ‘Brandon, 1919: Labour and Industrial Relations in the Wheat City in the Year of the General Strike’, Manitoba History 17 (1989): 2–13. S.C. 1919, c. 25 & 26. The government subsequently amended the Naturalization Act to make it easier to revoke certificates of naturalization (S.C. 1919, c. 38). Also see Drystek, ‘ “The Simplest and Cheapest Mode of Dealing with Them” 422–3. Canada, House of Commons Debates (10 June 1919), 3285–6, 3287; S.C. 1919, c. 46; Katz, ‘Some Legal Consequences’, 50–1.

338

NOTES

14. Mary Horodyski, ‘Women and the Winnipeg General Strike of 1919’, Manitoba History 11 (1986): 34; Angel, ‘Workers, Picketing’. 15. Siemiatycki, ‘Labour Contained’, 342–4. 16. Bercuson, Confrontation at Winnipeg, 163–4; Foy, ‘Gideon Robertson’, 106; NAC, RG 13, Access 87–88/103: A–1688, pocket #2, Arthur Meighen, Acting Minister of Justice, to W. Craig, Secretary, Trades and Labour Council, Brandon, 19 June 1919; Reimer, ‘War, Nationhood and Working-Class Entitlement’, 228–9; James R. Barrett and David Roediger, ‘Inbetween Peoples: Race, Nationality and the “New Immigrant” Working Class’, Journal of American Ethnic History (1997): 3–44. 17. Avery, Reluctant Host, 79; Labor News, 11 July 1919; S.C. 1919, c. 60; Don Macgillivray, ‘Military Aid to the Civil Power: The Cape Breton Experience in the 1920s’, Acadiensis 3, 2 (1974): 46–7; Canada, House of Commons Debates (16, 24 June 1919), 3668–9. 18. Tom Mitchell, ‘ “Repressive Measures”: A.J. Andrews, the Committee of 1000 and the Campaign Against Radicalism After the Winnipeg General Strike’, Left History 3, 2 and 4, 1 (1996): 133–67; Ken Kehler and Alvin Esau, Famous Manitoba Trials: The Winnipeg General Strike Trials —Research Source (Winnipeg, 1990); James Muir, ‘The Demand for British Justice—Protest and Culture during the Winnipeg General Strike Trials’ (University of Manitoba, Canadian Legal History Project, Working Paper Series, 1993); Desmond H. Brown, ‘The Craftsmanship of Bias: Sedition and the Winnipeg Strike Trial, 1919’, Manitoba Law Journal 14 (1984): 1–33; Katz, ‘Some Legal Consequences’, 41–6; Peter R. Lederman, ‘Sedition in Winnipeg: An Examination of the Trials for Seditious Conspiracy Arising from the General Strike of 1919’, Queen’s Law Journal 3 (1976): 3–24; Masters, Winnipeg General Strike, 113–34; Avery, ‘The Radical Alien and the Winnipeg General Strike’, 223–4. 19. Manitoba, Royal Commission to Enquire into and Report Upon the Causes and Effects of the General Strike Which Recently Existed in the City of Winnipeg for a Period of Six Weeks Including the Methods of Calling and Carrying on Such Strike (H.A. Robson, KC, Commissioner), Report (1919), 10, 27, 30–1. 20. Mitchell, ‘Repressive Measures’, 142–3, 149–50; F. Murray Greenwood, ‘The Drafting and Passage of the War Measures Act in 1914 and 1927: Object Lessons in the Need for Vigilance’, in Pue and Wright, eds, Canadian Perspectives on Law and Society, 304–5; Kehler and Esau, Famous Manitoba Trials, 12–13. 21. Noble was appointed on Andrews’s recommendation. See Mitchell, ‘Repressive Measures’, 146, n. 46. On the bail application, see Rex v. Alamazoff (1919), 30 M.R. 143. Avery, ‘Radical Alien’, 223–4; Rex v. Schoppelrei (1919), 30 M.R. 137; Roz Usiskin, ‘Moses Almazov and the

N OT E S

22. 23.

24. 25. 26.

27. 28.

29. 30. 31.

32.

33.

339

Winnipeg General Strike’, Outlook 33, 3–4 (1995): 13–14, 10, 30–1; Drystek, ‘ “The Simplest and Cheapest Mode of Dealing with Them” ’, 425. Brown, ‘Craftsmanship of Bias’, 30–1; Mitchell, ‘Repressive Measures’, 154–6. Rex v. Russell et al. (1919), 29 M.R. 511 (Cameron J.A.); Rex v. Russell (1919), 50 D.L.R. 629 (Mathers, C.J.K.B., Macdonald J., and Metcalfe J.); NAC, RG 13, Access 87–88/103:A–1688, pocket, Private E. Jackson to C.J. Doherty, Minister of Justice, 28 Aug. 1919; Muir, ‘The Demand for British Justice’, 6. Mitchell, ‘Repressive Measures’, 151–3. Brown, ‘Craftsmanship of Bias’, 5. The King v. Russell (1920), 51 D.L.R. 1, 11 (Purdue), 7–13 (Cameron). Russell’s petition to the Privy Council for leave to appeal was denied. Labor Leader, 23 July 1919, 5. Mitchell, ‘Repressive Measures’, 162–6. The King v. Ivens (1920), 51 D.L.R. 38, 40; Barry Cahill, ‘Howe (1835), Dixon (1920) and McLachlan (1923): Comparative Perspectives on the Legal History of Sedition’, University of New Brunswick Law Journal 45 (1995): 281–307. Masters, Winnipeg General Strike, 124–6. Reimer, ‘War, Nationhood and World-Class Entitlement’. For the TLC’s response, see Labor Leader, 30 Jan. 1920, 4; TLC, Proceedings (1920), 32–4, 132–42; LG (Mar. 1921): 292–3. J.E. Rea, ‘The Politics of Conscience: Winnipeg After the Strike’, CHA Historical Papers (1971): 276–88. For the legal fallout of such an effort, see Morrison v. Ingles, [1920] 2 W.W.R. 50; British Columbia Telephone Co. v. Morrison (1921), 29 B.C.R. 289. Naylor, New Democracy, 52–9; Nolan Reilly, ‘The General Strike in Amherst, Nova Scotia, 1919’, Acadiensis 9 (1980): 56–77; Mitchell, ‘Brandon, 1919’, 9; Mitchell and Naylor, ‘The Prairies’; David Bright, ‘Bonds of Brotherhood: the Experience of Labour in Calgary, 1903–19’, MA thesis (University of Calgary, 1990), ch. 3; Makahonuk, ‘Class Conflict’, 120–3; Elaine Bernard, ‘Last Back: Folklore and the Telephone Operators in the 1919 Vancouver General Strike’, in Barbara K. Latham and Roberta J. Pazdro, eds, Not Just Pin Money (Victoria, 1984), 279–85; Allen Seager, ‘Workers, Class, and Industrial Conflict in New Westminster, 1900–1930’, in Rennie Warburton and David Coburn, Workers, Capital and the State in British Columbia: Selected Papers (Vancouver, 1988), 125–6; Allen Seager and David Roth, ‘British Columbia and the Mining West: A Ghost of a Chance’, in Heron, Workers’ Revolt, 254–8.

340

NOTES

34. Seager, ‘Proletariat in Wild Rose Country’, 316–61; Bercuson, Fools and Wise Men, 136–43; Foy, ‘Gideon Robertson’, 112–17; LG (Jan. 1920): 72–3; (Feb. 1920): 177–8; (May 1920): 625; (Nov. 1920): 1577; Canada, House of Commons Debates (17 June 1920), 3691; Anne B. Woywitka, ‘Drumheller Strike of 1919’, Alberta Historical Review 21, 1 (1973): 1–6; LG (Apr. 1920): 417; (Nov. 1920): 1577. 35. S.C. 1920, c. 42; Canada, House of Commons Debates (7, 10, 17 June 1920), esp. 3360–1. 36. David Frank, ‘The Cape Breton Coal Miners, 1917–1926’, Ph.D. thesis (Dalhousie University, 1979), 330–51; Frank, ‘The Trial of J.B. McLachlan’, CHA Historical Papers (1983): 208–25; Frank, ‘Industrial Democracy and Industrial Legality’, 438–55; Ian McKay and Suzanne Morton, ‘The Maritimes: Expanding the Circle of Resistance’, in Heron, ed., Workers’ Revolt, 43–86; John Manley, ‘Preaching the Red Stuff: J.B. McLachlan, Communism, and the Cape Breton Miners, 1922–1935’, L/LT 30 (1992): 65–114; Heron, Working in Steel, 153–8; MacEwan, Miners and Steelworkers, 61–150. 37. Rodney, Soldiers, 41–52; Norman Penner, Canadian Communism: The Stalin Years and Beyond (Toronto, 1988), 44–69. 38. Rex v. McLachlan and Livingstone, [1923] 4 D.L.R. 1047; Cahill, ‘Legal History of Sedition’; Frank, ‘Trial of J.B. McLachlan’; John Mellor, The Company Store (Toronto, 1983), ch. 9. 39. Halifax Gazette, 12 July 1923; Lewis, cited in Frank, ‘Industrial Democracy and Industrial Legality’, 450. 40. The King v. McLachlan (1923), 56 N.S.R. 413 and [1924] 1 D.L.R. 110; Cahill, ‘Legal History of Sedition’; Frank, ‘Trial of J.B. McLachlan’. On sedition, also see NAC, RG 13, vol. 2169, Commissioner Perry to Newcombe, 25Apr. 1921 and Newcombe to Perry, 29Apr. 1921; The King v. Arnold, The King v. Conn, The King v. Micheff, OA, RG 22–392–0–9196/9186; Peter MacKinnon, ‘Conspiracy and Sedition as Canadian Political Crimes’, McGill Law Journal 23 (1977): 622–43; Kenneth McNaught, ‘Political Trials and the Canadian Political Tradition’, in M.L. Friedland, ed., Courts and Trials: A Multidisciplinary Approach (Toronto, 1975), 137–61. 41. O.D. Skelton, ‘The Western Strikes’, Queen’s Quarterly 27, 1 (1919): 128; R.M. MacIver, Labor in the Changing World (Toronto, 1919); Doug Owram, The Government Generation: Canadian Intellectuals and the State, 1900–1945 (Toronto, 1986). 42. IC (June 1919): 49. 43. Robertson to Borden, 10 June 1919, cited in Hogan, Cobalt: Year of the Strike, 1919, 70. 44. Ibid., 69–79; Mike Solski and John Smaller, Mine-Mill (Ottawa, 1985), 66–9; Charlie Angus and Brit Griffin, We Lived a Life and Then Some

N OT E S

45.

46.

47.

48.

49.

50.

51.

341

(Toronto, 1996), ch. 11. IDIA subsequently amended: S.C. 1920, c. 29; Canada, House of Commons Debates (10 May 1920), 2194–5 (Lemieux). Royal Commission on Industrial Relations, Report of Commission, printed as a supplement to LG (July 1919). On industrial councils, see Alan Fox, History and Heritage (London, 1985), 293–8; H.S. Ferns and B. Ostry, The Age of Mackenzie King (London, 1955), 185–216; H.M. Gittelman, Legacy of the Ludlow Massacre: A Chapter in American Industrial Relations (Philadelphia, 1988). Canada, National Industrial Conference, Official Report of Proceedings and Discussions (Ottawa, 1919), 7; Larry G. Gerber, ‘The United States and Canadian National Industrial Conferences of 1919: A Comparative Analysis’, Labor History 32 (1991): 42–65; Naylor, New Democracy, 189–98; Siemiatycki, ‘Labour Contained’, 355–64. National Industrial Conference, Official Report, xi. Generally, see Naylor, New Democracy, 189–207; Andrew Yarmie, ‘The Right to Manage: Vancouver Employers’ Associations, 1900–1923’, BC Studies 90 (1991): 63–72. Report of a Conference on Industrial Relations, printed as a supplement to LG (Mar. 1921): 483–545; H.M. Grant, ‘Solving the Labour Problem at Imperial Oil: Welfare Capitalism in the Canadian Petroleum Industry, 1919–1929’, L/LT 41 (1998): 69–95; Bruce Scott, ‘A Place in the Sun: The Industrial Council at Massey-Harris, 1919–1929’, L/LT 1 (1976): 158–92; Margaret McCallum, ‘Corporate Welfarism in Canada, 1919–39’, Canadian Historical Review 71 (1990): 46–79; Naylor, New Democracy, 165–88; James Struthers, No Fault of Their Own: Unemployment and the Canadian Welfare State, 1914–1941 (Toronto, 1983), 25–43; An Act to amend the Immigration Act, S.C. 1921, c. 32, s. 1(1); Canada, House of Commons Debates (23 May 1921), 3822. Judy Fudge, ‘Voluntarism and Compulsion: The Canadian Federal Government’s Intervention in Collective Bargaining from 1900 to 1946’, D.Phil. thesis (Oxford University, 1988), 55–6; Toronto Electric Commissioners v. Snider, [1925] A.C. 396; Thompson and Seager, Canada, 24–8; Struthers, No Fault of Their Own, 30–43; Tom Traves, The State and Enterprise: Canadian Manufacturers and the Federal Government, 1917–1931 (Toronto, 1979), 73–100. Naylor, New Democracy, 215–44; Craig Heron, ‘National Contours: Solidarity and Fragmentation’, in Heron, Workers’ Revolt, 268–304; Mitchell and Naylor, ‘The Prairies’; Alvin Finkel, ‘The Rise and Fall of the Labour Party in Alberta, 1917–42’, L/LT 16 (1985): 61–96; Phillips, No Power Greater, 89–91. Janice Newton, The Feminist Challenge to the Canadian Left, 1900– 1918 (Montreal, 1995), 78–109, 150–60; Bob Russell, ‘A Fair or a Minimum Wage? Women Workers, the State, and the Origins of Wage

342

52.

53.

54.

55.

56.

57.

NOTES

Regulation in Western Canada’, L/LT 28 (1991): 59–88; Linda Kealey, ‘Women and Labour during World War I: Women Workers and the Minimum Wage in Manitoba’, in Mary Kinnear, ed., First Days, Fighting Days (Regina, 1987), 76–99; Margaret McCallum, ‘Keeping Women in Their Place: The Minimum Wage in Canada, 1910–25’, L/LT 17 (1986): 29–56; Catherine Briggs, ‘Women, Men and the Minimum Wage in Ontario 1916–1940’, MA thesis (University of Guelph, 1992), 13–57; Strong-Boag, ‘The Girl of the New Day’, 158–63; Ramkhalawansingh, ‘Women during the Great War’, 261–307. LG (June 1921): 781; (Oct. 1921): 1277; (Feb. 1922): 193; (Mar. 1923): 736; Ian Radforth, Bushworkers and Bosses: Logging in Northern Ontario, 1900–1980 (Toronto, 1987), 104–5; OA, RG 7–12–0–16; Underhill, ‘Labor Legislation in British Columbia’; Factories Act, S.A. 1917, c. 20, s. 24(2). Company Towns Act, S.B.C. 1919, c. 14; Underhill, ‘Labor Legislation in British Columbia’, 255–6. S.M. 1920, c. 57; Doug Smith, Let Us Rise! (Vancouver, 1985), 64–5; Obsolete Statutes Repeal Act, S.B.C. 1922, c. 71; OA, RG 7–12–0–37, General Orders 39 and 45. But see An Act to Provide for the Organization of Fishermen’s Unions, S.P.E.I. 1924, c. 26; Kennedy Wells, The Fishery of Prince Edward Island (Charlottetown, 1986), 161–3. S.Q. 1924, c. 112; Quebec, Journals of the Legislative Assembly (16, 17 Mar. 1922), 312, 322–5; Montreal Gazette, 17, 18 Mar. 1922; Department of Labour, Trade Union Law in Canada (Ottawa, 1935), 72–6; Esdras Minville, Labour Legislation and Social Services in the Province of Quebec (A Study Prepared for the Royal Commission on DominionProvincial Relations, Appendix 5) (Ottawa, 1939), 28–9; Rouillard, Histoire du Syndicalisme au Québec, 120–9, 169–70; Rouillard, History of the Labour Movement in Quebec (Montreal, 1987), 90–4. On US incorporation debates, see Daniel Ernst, Lawyers Against Labor (Urbana, Ill., 1995), 147–64. On the French labour law background, see Rudolf B. Sobernheim and Henry Rothschild II, ‘Regulation of Labor Unions and Labor Disputes in France’, Michigan Law Review 37 (1939): 1025–77. On earlier provincial IDIA-type scheme, Municipal Strike and Lock-out Act, S.Q. 1921, c. 46; Margaret MacIntosh, Government Interventions in Labour Disputes in Canada (Bulletin of the Department of History and Political Science, Queen’s University, No. 47, 1924), 9–10. F.H. Leacy, ed., Historical Statistics of Canada, 2nd edn (Ottawa, 1983), E175; Cruikshank and Kealey, ‘Strikes in Canada’, 134; Russell, Back to Work?, 139–68. LG (Feb. 1922): 200–4; District No. 26 United Mine Workers of America v. Dominion Coal (1922), 63 D.L.R. 274; Canada, House of Commons

N OT E S

58.

59.

60. 61.

62. 63.

64.

65.

66.

67.

68.

343

Debates (20 Apr. 1923), 2061–3; Senate, Debates (31 May 1923), 751–4; Frank, ‘Cape Breton Miners’, 335–40; McKay and Morton, ‘Maritimes’. Maritime Labor Herald, 3 Feb. 1922, cited in Mellor, Company Store, 144; Steven Penfold, ‘ “Have You No Manhood In You?”: Gender and Class in the Cape Breton Coal Towns, 1920–1926’, Acadiensis 23, 2 (1994): 21–44. David Frank, ‘Class Conflict in the Coal Industry, Cape Breton 1922’, in Kealey and Warrian, eds, Essays in Canadian Working Class History, 161–84; Macgillivray, ‘Military Aid’, 52–4; Manley, ‘Preaching the Red Stuff’, 66–71. King to Tom Moore, President, TLC, 23 Aug. 1922, in TLC, Proceedings (1923), 138; Canada, House of Commons Debates (6 Mar. 1923), 863. Heron, Working in Steel, 153–9; MacEwan, Miners and Steelworkers, 91–110; Macgillivray, ‘Military Aid’, 55–9; Manley, ‘Preaching the Red Stuff’, 73–80; Frank, ‘The Trial of J.B. McLachlan’, 215. Halifax Chronicle, 2 July 1925. Report of Commission to inquire into the Industrial Unrest among the Steel Workers of Sydney, N.S. (Robertson Commission), printed as a supplement to LG (Feb. 1924): 16. Halifax Chronicle, 5 July 1923: ‘It is because there have been lawless acts that the Militia are on the ground and their presence here is the only guarantee the public have against future infractions of the law.’ King cited in Macgillivray, ‘Military Aid’, 58. Robertson Commission, 16, 24; McCrorie, ‘Legislation and Investigation’, 135–8. Canada, House of Commons Debates (6 June 1924), 2862–78, esp. 2869 (Macdonald), 2874 (Irvine), and 2875 (Woodsworth). An Act to amend the Militia Act, S.C. 1924, c. 57. Frank, ‘Cape Breton Coal Miners’, 362–75; MacEwan, Miners and Steelworkers, 123–50; Macgillivray, ‘Military Aid’, 61–4; Manley, ‘Preaching the Red Stuff’, 89–92; Angus Blaise Gillis, ‘New Waterford and the 1925 Coal Strike’, BA essay (St Francis Xavier University, 1971), 18–32 (on file at PANS); Penfold, ‘ “Have You No Manhood” ’, 32–4. Pariseau, Disorders, 78–86; R.C. Macleod, ‘The RCMP and the Evolution of Provincial Policing’, in Macleod and David Schneiderman, eds, Police Powers in Canada: The Evolution and Practice of Authority (Toronto, 1994), 46. Seager, ‘Proletariat in Wild Rose Country’, 362–423; Warren Caragata, Alberta Labour (Toronto, 1979), 82–95; Jose Villa-Arce, ‘The Alberta Provincial Police’, Alberta History 21, 4 (1973): 16–19; LG (Feb. 1923): 134; (Mar. 1923): 240; NAC, RG 27, vol. 330, file 22(92); Edmonton Journal, 28 Dec. 1922.

344

NOTES

69. Horrall, ‘Royal North-West Mounted Police’, 186–90; Macleod, ‘RCMP’, 45–8; Stonier-Newman, Policing a Pioneer Province, 130–3; OA, RG 23, series E–30, file 1.5; Naylor, New Democracy, 210–12; Canada, House of Commons Debates (4 Apr. 1922), 667 (King), 675 (Woodsworth); OA, RG 23 series E–96, box 1, file 1.2. 70. Phillips, No Power Greater, 92–3; S.D. Hanson, ‘Estevan 1931’, in Irving Abella, ed., On Strike (Toronto, 1975), 41–2. 71. Interview with Mr John MacNeil, New Waterford, 6 Mar. 1971, cited in Gillis, ‘New Waterford and the 1925 Coal Strike’, 28; Penfold, ‘ “Have You No Manhood?” ’. 72. LG (July 1923): 766–77; Ann Schofield, ‘An “Army of Amazons”: The Language of Protest in a Kansas Mining Community, 1921–22’, American Quarterly 37 (1985): 686–701. 73. NAC, RG 27, vol. 323, no. 331 (Avon Hosiery); LG (Nov. 1920): 1474. Also see Linda Kealey, Enlisting Women for the Cause (Toronto, 1998), 175–90; Strong-Boag, ‘Girl of the New Day’, 155–6; LG (Nov. 1924): 929; (Dec. 1924): 1034. 74. Toronto Mail and Empire, 9 Dec. 1922, 1; Suzanne Morton, ‘Labourism and Economic Action: The Halifax Shipyard Strikes of 1920’, L/LT 22 (1988): 87–8; TLC, Proceedings (1920), 132–42; LG (Mar. 1921): 292. 75. Arthur Meighen to Tom Moore, 28 Apr. 1921 in TLC, Proceedings (1921), 28–31; (1921), 60 Que. S.C. 105 affirmed at [1923] 3 D.L.R. 768; Bercovitch v. Joint Board of the Cloak and Suitmakers’ Union of Montreal, reported in LG (June 1923): 635–38; NAC, MG 30 A 106, file 1, John Jacob Spector Papers. 76. Meretsky v. Arntfeld (1922), 21 O.W.N. 439. Also see R. v. Blachsawl, [1925] 4 D.L.R. 247 (Alta C.A.). 77. Robinson v. Adams (1924), 56 O.L.R. 217, 224; (1924), 27 O.W.N. 271. Also see Dick v. Stephenson, reported in LG (Nov. 1923): 1341. 78. TLC, Proceedings (1921), 28–31; (1922), 58–60; (1923), 11, 43–5, 62–3; (1924), 18, 49–50; (1925), 56. 79. Chase v. Starr, [1923] 2 D.L.R. 1112 (Man. K.B.); [1923] 4 D.L.R. 103 (Man. C.A.); [1924] S.C.R. 495. 80. Montreal Street Railway Co. v. Board of Conciliation and Investigation (1913), Q.R. 44 S.C. 350 at 360 (Greenshields J.). 81. Canada, House of Commons Debates (18 May 1923), 2886–96. 82. F. Murray Greenwood, ‘Lord Watson, Institutional Self-Interest, and the Decentralization of Canadian Federalism in the 1890’s’, University of British Columbia Law Review 9 (1974): 244–79; Jonathan Robinson, ‘Lord Haldane and the British North America Act’, University of Toronto Law Journal 20 (1970): 55–69; Stephen Wexler, ‘The Urge to Idealize:

N OT E S

345

Viscount Haldane and the Constitution of Canada’, McGill Law Journal 29 (1984): 608–50. 83. MacIntosh, Government Interventions in Labour Disputes in Canada, 23–4. 84. Toronto Electric Commissioners v. Snider (1924), 55 O.L.R. 454, 476 (Ferguson J.A.) and 467 (where Mowat J. spoke of the Winnipeg strike being broken by the ‘voluntary efforts of non-industrial citizens’, a rather peculiar characterization); [1925] A.C. 396, 416. 85. Leacy, ed., Historical Statistics of Canada, 2nd edn, E175; Cruikshank and Kealey, ‘Strikes in Canada’, 136; Seager, ‘A New Labour Era’; Egil Schonnig, ‘Union-Management Relations in the Pulp and Paper Industry of Ontario and Quebec, 1914–1950’, Ph.D. thesis (University of Toronto, 1955).

Chapter 6 1. John Herd Thompson with Allen Seager, Canada 1922–1939 (Toronto, 1985), 76–103, 342–9; Cruikshank and Kealey, ‘Strikes in Canada’, 85–145. 2. Ian McKay, The Craft Transformed (Halifax, 1985), 84–7; Allen Seager, ‘ “A New Labour Era?”: Canadian National Railways and the Railway Worker, 1919–1929’, Journal of the Canadian Historical Association 3 (1992): 171–95; John Manley, ‘Communists and Autoworkers: The Struggle for Industrial Unionism in the Canadian Automobile Industry’, L/LT 17 (1986): 105–33; Veronica Strong-Boag, The New Day Recalled (Toronto, 1988), 69–70; Joan Sangster, ‘The Communist Party and the Woman Question, 1922–1929’, L/LT 15 (1985): 33–5. 3. Palmer, Working-Class Experience, 232–3; David Brody, Workers in Industrial America (New York, 1980), 48–81; Lizabeth Cohen, Making a New Deal (New York, 1990), 159–211. 4. For example, organizing drives in the auto industry during the 1920s were defeated with little legal intervention. See Manley, ‘Communists and Autoworkers’, 112–20. 5. S.C. 1925, c. 14; Thompson with Seager, Canada 1922–39, 131–7. 6. S.B.C. 1925, c. 19; S.M. 1926, c. 21; S.N.B. 1926, c. 16; S.S. 1926, c. 58. On Nova Scotia, see Industrial Peace Act, S.N.S. 1925, c. 1, repealed and replaced by Industrial Disputes Investigation Act (Nova Scotia), S.N.S. 1926, c. 5; Kirby Abbott, ‘The Coal Miners and the Law in Nova Scotia: From the 1864 Combination of Workmen Act to the 1947 Trade Union Act’, in Michael Earle, ed., Workers and the State in Twentieth Century Nova Scotia (Fredericton, 1989), 36. On Alberta, see The Labour Disputes

346

7. 8. 9.

10. 11. 12. 13.

14.

15.

16.

17.

18.

NOTES

Act, S.A. 1926, c. 53, amended by The Industrial Disputes Investigation Act (Alberta), S.A. 1928), c. 42; Alvin Finkel, The Social Credit Phenomenon in Alberta (Toronto, 1989), 20–2. Generally, see William Steward Arnold Martin, ‘A Study of Legislation Designed to Foster Industrial Peace in the Common Jurisdiction of Canada’, Ph.D. thesis (University of Toronto, 1954), 263–72. LG (Nov. 1927): 1168; (Oct. 1930): 1164; OA, RG 7–1–0–28; S.O. 1932, c. 20; S.Q. 1932, c. 46. S.C. 1925, c. 14; Fudge, ‘Voluntarism and Compulsion’, 58–9. B.M. Selekman, Law and Labor Relations (Boston: Graduate School of Business Administration, Harvard University, Business Research Studies, Number 14, 1936), 6–10, 23–34, 41–2; Fudge, ‘Voluntarism and Compulsion’, 61–3; Martin, ‘A Study of Legislation’, 271. Vulcan Iron Works v. Winnipeg Lodge No. 174 (1911), 21 M.R. 473; Rex v. Blachsawl, [1925] 4 D.L.R. 247 (B.C.C.A.). Rex v. Renners (1926), 45 C.C.C. 282, 286 (Harvey, C.J.A.). Renners v. The King, [1926] 3 D.L.R. 669, 682–3. TLC, Report (1926), 48–9, 125–30; LG (Jan. 1927): 48; (Jan. 1928): 38; NAC, W.L. Mackenzie King Papers, MG 26, J1, vol. 1696, Heenan to King, 8 Aug. 1927; King to Heenan, 13 Aug. 1927; LG (Sept. 1927): 978. Richard Fidler, ‘Proscribing Unlawful Associations: The Swift Rise and Demise of Section 98’, unpublished paper, Osgoode Hall Law School, 1984, on file with the authors; S.C. 1927, c. 29; Roberts, Whence They Came, 24–34. Schuberg v. Local I.A.T.S.E., [1927] 2 D.L.R. 20, affirming [1926] 3 D.L.R. 166 (B.C.S.C.); Hay v. Local No. 25 Ontario Bricklayers and Masons International Union (1929), 63 O.L.R. 418. Robinson v. Adams (1924), 56 O.L.R. 217 (C.A.); Cotter v. Osborne (1909), 18 Man. L.R. 471; C.R. [1911] 1 A.C. 137; Cumberland Coal Co. v. McDougall (1910), 44 N.S.R. 535; Schuberg v. Local I.A.T.S.E., [1927] 2 D.L.R. 20; Local Union No. 1562, United Mine Workers of America v. Williams and Rees (1919), 59 S.C.R. 240; Society Brand Clothes v. Amalgamated Clothing Workers of America (1930), 48 Que. K.B. 14, confirmed by [1931] 3 D.L.R. 361 (S.C.C.); Montreal Gazette, 6 Mar. 1929 (editorial calling for mandatory incorporation of trade unions). Polakoff v. Winters Garment Co., [1928] 2 D.L.R. 227. On individual contract actions, see Caven v. Canadian Pacific Railway, [1925] 3 D.L.R. 841 (P.C.); Young v. C.N.R., [1931] 1 D.L.R. 645 (P.C.). OA, RG 7–1–0–15; Canada, House of Commons Debates (12 June 1929), 3674–5.

N OT E S

347

19. Penner, Canadian Communism, 83–4; Renners v. The King, [1926] 3 D.L.R. 669; LG (July 1925): 660–1; Caragata, Alberta Labour, 89–93; Seager, ‘Proletariat in Wild Rose Country’, 391–7. 20. LG (Sept. 1925): 947; (Oct. 1925): 961–2; Seager, ‘Proletariat in Wild Rose Country’, 397–9. 21. Seager, ‘Proletariat in Wild Rose Country’, 402–3; J. Petryshyn, ‘Class Conflict and Civil Liberties: The Origins and Activities of the Canadian Labour Defence League, 1925–1940’, L/LT 10 (1982): 40–2. 22. Allen Seager, ‘Minto, New Brunswick: A Study in Class Relations between the Wars’, L/LT 5 (1980): 111–12. 23. Nova Scotia, Report of Provincial Royal Commission on Coal Mining Industry in Nova Scotia, supplement to LG (Jan. 1926): 4; LG (Aug. 1926): 762; (Dec. 1926): 1253; (Mar. 1927): 344; Coal Mines Regulation Act, S.N.S. 1927, c. 1, s. 97; Frank, ‘The Cape Breton Coal Miners’, 376–82; Manley, ‘Preaching the Red Stuff’, 93. 24. Ruth A. Frager, Sweatshop Strife (Toronto, 1992), 30–3; Mercedes Steedman, ‘The Promise: Communist Organizing in the Needle Trades, the Dressmakers’ Campaign, 1928–1937’, L/LT 34 (1994): 46–9; Stanley Vittoz, New Deal Labor Policy and the American Industrial Economy (Chapel Hill, NC, 1987), 34–46. 25. LG (Sept. 1926): 860–2; (Dec. 1926): 1191–2; Society Brand Clothes v. Amalgamated; LG (Feb. 1928): 115; (Mar. 1928): 257; Strong-Boag, ‘The Girl of the New Day’, 154; Smith, Let Us Rise!, 61. 26. LG (Dec. 1925): 1175; (June 1926): 541–3; (Aug. 1926): 762; Rouillard, Histoire du Syndicalisme au Québec, 150–1. 27. Gordon Hak, ‘British Columbia Loggers and the Lumber Workers Industrial Union, 1919–1922’, L/LT 23 (1989): 84–7; Radforth, Bushworkers and Bosses, 110–19; OA, RG 23, Series E–30, Box 1, file 6. 28. Radforth, Bushworkers and Bosses, 119–25; Ian Radforth, ‘Social History of Finns in Ontario’, Polyphony 3 (1981): 23–34; J. Peter Campbell, ‘The Cult of Spontaneity: Finnish-Canadian Bushworkers and the Industrial Workers of the World in Northern Ontario, 1919–1934’, L/LT 41 (1998): 135–9; Satu Repo, ‘Rosvall and Voutilainen: Two Union Men Who Never Died’, L/LT 8–9 (1981–2): 79–102; OA, RG 23, series E–30, box 1, K.D. Campbell to Rogers, 18 Dec. 1919; Rogers to K.D. Campbell, 24 Dec. 1919. 29. OA, RG 4–32–1927–#2267; OA, RG 23, series E–96, box 1, file 1.2. 30. Lita-Rose Betcherman, The Little Band (Ottawa, 1982), 1–84; Rex v. Emily Weir, (1929), 52 C.C.C. 111 (Denton, Co. Ct. J.); NAC, J.L. Cohen Papers, MG 30, A 94, vol. 1, file 4 (s. 98); Rex v. Buhay (1929), 64 O.L.R. 531 (Garrow J.); Rex v. Knowles (1929), 65 O.L.R. 6 (Middle-

348

NOTES

ton J.A.) (vagrancy); Rex v. Patterson (1930), 66 O.L.R. 461 (Middleton J.A.) (unlawful assembly); A.E. Smith, All My Life (Toronto, 1977), 104.

Chapter 7 1. Thompson with Seager, Canada 1922–1939, 193–252; Barry Broadfoot, Ten Lost Years 1929–1939 (Markham, Ont., 1975). 2. Penner, Canadian Communism, 89–127; Manley, ‘Canadian Communists’. 3. Staughton Lynd, ed., We Are All Leaders (Urbana, Ill., 1996); Cruikshank and Kealey, ‘Strikes in Canada’, 96–100; Stuart Jamieson, ‘Some Reflections on Violence and the Law in Industrial Relations’, in D.J. Bercuson and L.A. Knafla, eds, Law and Society in Canada in Historical Perspective (Calgary, 1979), 141–55; Marcus Klee, ‘Between the Scylla and Charybdis of Anarchy and Despotism[:] The State, Capital, and the Working Class in the Great Depression, Toronto, 1929–1940’, Ph.D. thesis (Queen’s University, 1998). 4. Struthers, No Fault of Their Own, ch. 2; Gillian Creese, ‘The Politics of Dependence: Women, Work and Unemployment in the Vancouver Labour Movement before World War II’, in Gregory S. Kealey, ed., Class, Gender, and Region: Essays in Canadian Historical Sociology (St John’s, 1988), 134–8; Joan Sangster, Dreams of Equality: Women on the Canadian Left, 1920–1950 (Toronto, 1989), 73–4; Sean Cadigan, ‘Battle Harbour in Transition: Merchants, Fishermen, and the State in the Struggle for Relief in a Labrador Community during the 1930s’, L/LT 26 (1990): 125–50. 5. S.C. 1930, c. 11, s. 2, 3. 6. Relief Act, S.C. 1930 (2nd Sess.), c. 1; Roberts, Whence They Came, ch. 8; Shin Imai, ‘Deportations in the Depression’, Queen’s Law Journal 7 (1981): 72–7; Immigration Act, R.S.C. 1927, c. 93 (as amended). 7. John Manley, ‘Communism and the Canadian Working Class During the Great Depression: The Workers’ Unity League’, Ph.D. thesis (Dalhousie University, 1984), 544–50; Betcherman, Little Band, 89–104, 109–10; Stonier-Newman, Policing a Pioneer Province, 171–3; W. Peter Archibald, ‘Distress, Dissent and Alienation: Hamilton Workers in the Great Depression’, Urban History Review 21 (1992): 8; Gordon Hak, ‘On the Fringes: Capital and Labour in the Forest Economies of the Port Alberni and Prince George Districts, British Columbia, 1910–1939’, Ph.D. thesis (Simon Fraser University, 1986), 286–311. 8. Roberts, Whence They Came, ch. 7; Imai, ‘Deportations in the Depression’, 78–90; Drystek, ‘ “The Simplest and Cheapest Mode of Dealing with Them” ’, 427–39.

N OT E S

349

9. Canada, House of Commons Debates (31 July 1931), 4416 (King), 1 Aug. 1931, 4453 (Woodsworth), 4454 (Manion); Unemployment and Farm Relief Act, S.C. 1931, c. 58. 10. David Bright, ‘The State, the Unemployed, and the Communist Party in Calgary, 1930–5’, Canadian Historical Review 78 (1997): 547–53; Michael Lonardo, ‘Under a Watchful Eye: A Case Study of Police Surveillance During the 1930s’, L/LT 35 (1995): 11–41; OA, RG 23, series E–96, box 1, file 1.2; F.R. Scott, ‘The Montreal Sedition Cases’, Canadian Bar Review 9 (1931): 756–61; Caragata, Alberta Labour, 102–4; Betcherman, Little Band, 159–82. 11. Betcherman, Little Band, 29–41, 171–215; F.R. Scott, ‘The Trial of the Toronto Communists’, Queen’s Quarterly 39 (1932): 512–27; Rex v. Buck et al. (1932), 57 C.C.C. 290; Roberts, Whence They Came, 149–53. 12. Fidler, ‘Proscribing Unlawful Associations’, 44–51. Also see Rex v. Evans (1934), 32 C.C.C. 29; Bright, ‘The State, the Unemployed, and the Communist Party’, 553–4; Canada, House of Commons Debates (19 June 1936), 3904; Gregory S. Kealey and Reg Whitaker, eds, R.C.M.P. Security Bulletins: The Depression Years, Part I, 1933–34 (St John’s, 1993), 354; Ronald Liversedge, Recollections of the On-to-Ottawa Trek, ed. Victor Hoar (Toronto, 1973), 197; Lorne A. Brown, When Freedom Was Lost (Montreal, 1987), 140; R.C. McCandless, ‘Vancouver’s “Red Menace” of 1935: The Waterfront Situation’, BC Studies 22 (1974): 67. 13. Smith, All My Life, 146. 14. Macleod, ‘The RCMP and the Evolution of Provincial Policing’, 44–56. 15. Phillips, No Power Greater, 106; Louise Gorman and John L. McMullan, ‘In Defiance of the Law of the Land: Social Control and the Unemployed Movement in the Dirty Thirties in British Columbia’, Canadian Criminology Forum 8 (1987): 84–102; Larry Hannant, ‘The Calgary Working Class and the Social Credit Movement in Alberta, 1932–35’, L/LT 16 (1985): 101–4; Lorne A. Brown, ‘Unemployment Relief Camps in Saskatchewan, 1933–36’, Saskatchewan History 23 (1970): 84–6; Archibald, ‘Distress, Dissent and Alienation’, 24–5 (Hamilton, 1932); Manley, ‘Communism and the Canadian Working Class’, 566–7; H. Blair Neatby, The Politics of Chaos (Toronto, 1972), 63; OA, RG 4–32, DT 1932, FN 1183, E. Bayly, deputy attorney general, to local Crown attorneys, 27, 29 April 1931. 16. OA, RG 4–32, DT 1932, FN 1183, newspaper memo (undated); W.H. Price to Charles McCrea, 4 May 1932; Rex v. Stewart, [1934] 3 D.L.R. 61 (Alta C.A.); Alvin Finkel, ‘Populism and the Proletariat: Social Credit and the Alberta Working Class’, Studies in Political Economy 13 (1984): 119–20. 17. Brown, When Freedom Was Lost, 47–51; Struthers, No Fault of Their Own, 75–81, 99 (McNaughton).

350

NOTES

18. Cited in Brown, When Freedom Was Lost, 51. 19. Glen Makahonuk, ‘The Saskatoon Relief Camp Workers’ Riot of May 8, 1933: An Expression of Class Conflict’, Saskatchewan History 37 (1984): 55–72; Brown, ‘Unemployment Relief Camps’, 89; Brown, When Freedom Was Lost, ch. 4; Laurel Sefton MacDowell, ‘Relief Camp Workers in Ontario during the Great Depression of the 1930s’, Canadian Historical Review 76 (1995): 219–23; MacDowell, ‘Canada’s “Gulag”: Project #51 Lac Seul (A Tale from the Great Depression)’, Journal of Canadian Studies 28, 2 (1993): 130–58; Liversedge, Recollections, 35–51; Relief Measures Act, S.C. 1932, c. 36 and Relief Act, S.C. 1933, c. 18. 20. Manley, ‘Communism and the Canadian Working Class’, 568–9; OA, RG 4–32, DT 1935, FN 801, FN 1222; OA, RG 23, series E–96, box 1. 21. Liversedge, Recollections; Howard, ‘We Were the Salt of the Earth!’ (Regina, 1985); Brown, When Freedom Was Lost; John Eleen, ‘Freight Trains & Memory Lanes’, Our Times (Aug. 1995): 24–31; Lonardo, ‘Under a Watchful Eye’, 19–28; Stonier-Newman, Policing a Pioneer Province, 192–5. 22. NAC, RG 13–25, vol. 2555, file 135657 pt. 1, ‘Memorandum of a Conference . . . June 12’. 23. NAC, RG 13–25, vol. 2555, file 135657 pt. 1, F.B. Bagshaw to W.S. Edwards, Deputy Minister of Justice, 3, 13 July, 2 Aug. 1935; vol. 2555, file 135657 pt. 2, B.D. Hogarth to Deputy Minister of Justice, 30 Jan. 1936; Brown, When Freedom Was Lost, 203. 24. NAC, RG 13–25, vol. 2555, file 135657 pt. 1, F.B. Bagshaw to W.S. Edwards, 3 July 1935. 25. Ibid., Bagshaw to Edwards, 13 July, 2 Aug. 1935. 26. S.C. 1936, c. 29, s. 1; MacDowell, ‘Relief Camp Workers’, 223–8. 27. Cruikshank and Kealey, ‘Canadian Strikes’, 134; Leacy, ed., Historical Statistics, E175; Canada, Department of Labour, Labour Organization in Canada (various years). 28. Irving Abella, Nationalism, Communism, and Canadian Labour (Toronto, 1973), 2. 29. Manley, ‘Canadian Communists’; Gillian Creese, ‘Exclusion or Solidarity? Vancouver Workers Confront the “Oriental Problem” ’, BC Studies 80 (1988–9): 44–7. 30. British Columbia, Department of Labour, Annual Report (1932), 41; OA, RG 7–12–0–289. 31. C.A. Pearce, ‘Trade Unions in Canada’, Canadian Bar Review 10 (1932): 349–60, 414–22, 524–32; Stewart v. Baldassari (1930), 38 O.W.N. 431 (injunction); Rex v. Baldassari et al., [1931] O.R. 169 (criminal). Also see LG (Nov. 1931): 1181; Dallas v. Fellek et al., [1934] O.W.N. 247. For

N OT E S

32.

33.

34.

35.

36. 37.

38.

39. 40. 41.

42.

351

a less favourable outcome, see Klein v. Jenoves & Varley, [1932] 3 D.L.R. 571. For BC, see Rex v. Richards and Woolridge, [1934] 3 D.L.R. 332 (B.C.C.A.). Canada, House of Commons Debates (30 June 1934), 4550; TLC, Proceedings (1934), 127; letter from Tom Moore, President, TLC, 10 June 1935, reprinted in Underhill, ‘Labor Legislation in British Columbia’, 227–8. Thompson with Seager, Canada 1922–1939, 261–6; W.H. McConnell, ‘Some Comparisons of the Roosevelt and Bennett “New Deals” ’, Osgoode Hall Law Journal 9 (1971): 221–60. National Industrial Recovery Act, 73d Congress, Sess. I, ch. 90 (1933); Colin Gordon, New Deals (New York, 1994), ch. 5; Vittoz, New Deal Labor Policy, ch. 4; Rhonda F. Levine, Class Struggle and the New Deal (Lawrence, Kans., 1988), ch. 4. S.C. 1935, c. 44, 14 and 63; Attorney-General for Canada v. AttorneyGeneral for Ontario, [1937] A.C. 326 (P.C.); Frank R. Scott, ‘The Privy Council and Mr. Bennett’s “New Deal” Legislation’, in Scott, Essays on the Constitution, 90–101. Report of the Royal Commission on Price Spreads (Ottawa, 1935), 127, 128, 275. Ibid., 128–42; An Act to amend the Criminal Code, S.C. 1935, c. 56, s. 7 (adding section 415A); Canada, Senate, Debates (12 June 1935), 363–4; Fudge, ‘Voluntarism and Compulsion’, 99–100; David Millar, ‘Shapes of Power’, Ph.D. thesis (York University, 1980), 8; LG (June 1935): 508–9. S.D. Hanson, ‘Estevan 1931’, in Irving Abella, ed., On Strike (Toronto, 1975), 33–77; Steve Hewitt, ‘September 1931: A Re-Interpretation of the Royal Canadian Mounted Police’s Handling of the 1931 Estevan Strike and Riot’, L/LT 39 (1997): 159–78; LG (Oct. 1931): 1065–7. LG (Mar. 1932): 264, 390; B.M. Selekman, Law and Labor Relations (Boston, 1936), 10, 24–5. LG (Mar. 1932): 288; (Apr. 1932): 390, 396–7; Hanson, ‘Estevan’, 56–9; Louise Watson, She Never Was Afraid (Toronto, 1976), 45–61. R. v. Evans (1933), 62 C.C.C. 29, 37 (per MacDonald J.A.) (B.C.C.A.), emphasis in original; LG (Dec. 1932): 1294–5; (Jan. 1933): 35; (Mar. 1933): 274, 331. Booklet cited in Stonier-Newman, Policing a Pioneer Province, 179. On the subsequent MWUC dispute in Corbin, BC, see LG (May 1935): 401–3; (June 1935): 514; (July 1935): 609; British Columbia, Department of Labour, Annual Report (1935), 62–7; StonierNewman, Policing a Pioneer Province, 191–2. Caragata, Alberta Labour, 113–19; LG (Sept. 1930): 1021–2; Allen Seager, ‘The Pass Strike of 1932’, Alberta History 25 (1977): 1–11; Gilbert Levine, ‘Patrick Lenihan and the Alberta Miners’, L/LT 16 (1985): 168–71; LG (June 1932): 651; (Aug. 1932): 857; (Sept. 1932): 961.

352

NOTES

43. Cited in Caragata, Alberta Labour, 117. 44. Stonier-Newman, Policing a Pioneer Province, 179–82; LG (Mar. 1933): 274–5; British Columbia, Department of Labour, Annual Report (1933), 56–7; Jean Barman, The West Beyond the West, rev. edn (Toronto, 1996), 256. 45. On Flin Flon, see Robert S. Robson, ‘Strike in the Single Enterprise Community: Flin Flon, Manitoba—1934’, L/LT 12 (1983): 63–86; Smith, Let Us Rise!, 76–82; Kealey and Whitaker, eds, R.C.M.P. Security Bulletins, 1933–34, 77–9, 92–3, 158, 255, 272, 390, 393, 417–18. On Noranda, see Evelyn Dumas, The Bitter Thirties in Québec (Montreal, 1975), 28–42; LG (Dec. 1934): 1091. 46. Margaret E. McCallum, ‘The Acadia Coal Strike, 1934: Thinking about Law and the State’, University of New Brunswick Law Journal 41 (1992): 179–96; Michael Earle, ‘The Coalminers and the “Red” Union: The Amalgamated Mine Workers of Nova Scotia, 1932–36’, L/LT 22 (1988): 99–137; MacEwan, Miners and Steelworkers, 169–84; Manley, ‘Preaching the Red Stuff’, 100–5; LG (Feb. 1935): 103; S.N.S. 1934, c. 44; Johnston et al. v. Mackey et al. (1937), 67 C.C.C. 196 (N.S.C.A.) upholding [1937] 1 D.L.R. 108 (N.S.S.C.); leave to appeal to the Supreme Court of Canada refused, [1937] 2 D.L.R. 751 (N.S.S.C.); Seager, ‘Minto, New Brunswick’, 114–16; LG (May 1934): 414. 47. Selekman, Law and Labor Relations, 8–9; Russell, Back to Work?, 172; The Department of Trade and Industry Act, S.A. 1934, c. 33; Edmonton Journal, 18 Feb. 1936, 12. 48. An Act to Amend the Mines Act, S.S.1932, c. 65, s. 15; The Coal Mines Licensing and Regulation Act, 1934, S.S. 1934, c. 47; LG (July 1934): 652–3; The Coal Mining Industry Act, 1935, S.S. 1934–35, c. 73. 49. Dufferin Sutherland, ‘Newfoundland Loggers Respond to the Great Depression’, L/LT 29 (1992): 83–115; Bill Parenteau, ‘Pulp, Paper and Poverty’, New Maritimes 7, 4 (Mar.-Apr. 1989): 20–6; Parenteau, ‘Forest and Society in New Brunswick: The Political Economy of the Forest Industries, 1918–1939’, Ph.D. thesis (University of New Brunswick, 1994), 358–67. 50. LG (Nov. 1931): 1181 (Barnett), 1182 (Port Moody); (Mar. 1932): 287 (Campbell River). 51. Jeanne Meyers, ‘Class and Community in the Fraser Mills Strike, 1931’, in Rennie Warburton and David Coburn, eds, Workers, Capital and the State in British Columbia: Selected Papers (Vancouver, 1988), 141–60; Manley, ‘Communism and the Canadian Working Class’, 209–16; LG (Oct. 1931): 1072; (Nov. 1931): 1180; Hak, ‘On the Fringes’, 210–20; British Columbia, Department of Labour, Annual Report (1934), 63–8. 52. Radforth, Bushworkers and Bosses, 125–33; Campbell, ‘The Cult of Spontaneity’, 140–2; Douglas Thur, ‘Beat Around the Bush: The Lumber

N OT E S

53.

54.

55.

56. 57.

58.

59.

60.

61.

353

and Sawmill Workers Union and the New Political Economy of Labour in Northern Ontario 1936–1988’, MA thesis (Lakehead University, 1990), 44–7; LG (Jan. 1932): 29; (Feb. 1932): 126; (Mar. 1932): 287 (Nipigon District); (Jan. 1934): 17 (Thunder Bay); OA, RG 4–32, DT 1934, FN 602 and FN 820; OA, RG 23, series E–105, box 1, file 1.6; OA, RG 7–12–0–194. NAC, RG 27, vol. 357, file 149; Jean-Michel Catta, La grève des bûcherons de Rouyn, 1933 (Rouyn, 1985), 36–50; Kealey and Whitaker, eds, R.C.M.P. Security Bulletins, 1933–34, 30, 33, 50; Watson, She Never Was Afraid, 82–3; Sangster, Dreams of Equality, 68. Loggers’ Act, S.N. 1931, c. 21; Ian D.H. McDonald, To Each His Own (St John’s, 1987), 45–6, 51; Sutherland, ‘Newfoundland Loggers’, 98–9; S.N.B. 1934, c. 15; LG (May 1934): 418–19; (July 1934): 586; Parenteau, ‘Forest and Society’, 386–425; S.N.B. 1935, c. 41. NAC, RG 27, vol. 357, file 149; Montreal Gazette, 19 Feb., 2, 9 Mar. 1934; LG (Mar. 1934): 236–7; Forest Operations Commission Act, S.Q. 1934, c. 22; Catta, La grève des bûcherons, 51–64. Woodsmen’s Employment Investigation Act, S.O. 1934, c. 60; Radforth, Bushworkers and Bosses, 130. Underhill, ‘Labor Legislation in British Columbia’, 97–118; Hak, ‘On the Fringes’, 194–7; Barman, The West Beyond the West, 232–4; Martin Robin, The Rush for Spoils (Toronto, 1972), 171–2, 212–13. Underhill, ‘Labor Legislation in British Columbia’, 133–67 (quote at 157); Hak, ‘On the Fringes’, 197; Gillian Creese, ‘Sexual Equality and the Minimum Wage in British Columbia’, Journal of Canadian Studies 26, 4 (1991): 126–7; Male Minimum Wage Act, S.B.C. 1925, c. 32; LG (Nov. 1926): 948; (Sept. 1927): 929; Rex v. Robertson and Hackett Sawmills Ltd. (1926), 38 B.C.R. 222 (B.C.C.A.); Compton v. Allen Thrasher Lumber Company (1927), 39 B.C.R. 70 (B.C.C.A.); International Timber Company v. Field, [1928] S.C.R. 564, 568; LG (Mar. 1928): 260; (Apr. 1928): 340. Male Minimum Wage Act, S.B.C. 1929, c. 43; LG (Mar. 1930): 282; (Aug. 1930): 917; Underhill, ‘Labor Legislation in British Columbia’, 161. Robin Fisher, ‘The Decline of Reform: British Columbia Politics in the 1930s’, Journal of Canadian Studies 25, 3 (1990): 74–89; Margaret A. Ormsby, ‘T. Dufferin Pattullo and the Little New Deal’, Canadian Historical Review 43 (1962): 277–97. Male Minimum Wage Act, S.B.C. 1934, c. 47; Hours of Work Act, S.B.C. 1934, c. 30; Female Minimum Wage Act, S.B.C. 1934, c. 48; IC (Mar. 1934): 42; LG (June 1934): 510–13; (May 1934): 419 (logging and sawmilling); (July 1934): 642 (taxis); (Aug. 1934): 751–2 (barbers,

354

62.

63. 64. 65.

66.

67.

68.

69.

70.

NOTES

mercantile clerks); (Dec. 1934): 1095 (baking); Underhill, ‘Labor Legislation in British Columbia’, 162–6. Report of the Royal Commission on Price Spreads, 109–12; Frager, Sweatshop Strife, 19–23; Steedman, Angels of the Workplace, ch. 6; Mercedes Steedman, ‘The Promise: Communist Organizing in the Needle Trades, the Dressmakers’ Campaign, 1928–1937’, L/LT 34 (1994): 52–6; Manley, ‘Communism and the Canadian Working Class’, 464–92; Watson, She Never Was Afraid, 27–30. NAC, RG 27, vol. 346, strike 3; LG (Feb. 1931): 131. OA, RG 7–12–0–113, unsigned to B. Fox, Leader Dress Co., 26 Feb. 1931. Dorothy E. Chunn, ‘Maternal Feminism, Legal Professionalism and Political Pragmatism: The Rise and Fall of Magistrate Margaret Patterson, 1922–1934’, in Pue and Wright, eds, Canadian Perspectives on Law and Society, 91–117. OA, RG 4–32, DT 1931, FN 1204; NAC, RG 27, vol. 347, strike 14; I.M. Biss, ‘The Dressmakers’ Strike’, Canadian Forum (July 1931): 367–9; Catherine Macleod, ‘Women in Production: The Toronto Dressmakers’ Strike of 1931’, in Acton et al., eds, Women at Work, 309–29; Steedman, ‘The Promise’, 57–61; Manley, ‘Communism and the Canadian Working Class’, 492–5; LG (Mar. 1931): 281; (Apr. 1931): 409; (May 1931): 520; (Feb. 1934): 109, 198; OA, RG 7–12–0–184. NAC, J.L. Cohen Papers, MG 30 A 94, vol. 2, file 1680, J.L. Cohen to D.C. Draper, 25, 26 Aug. 1933; Draper to Cohen, 28 Aug. 1933; NAC, RG 27, vol. 355, strike 80; LG (Sept. 1933): 902–3; (Oct. 1933): 984; Frager, Sweatshop Strife, 201–3. NAC, RG 27, vol. 264, strike 197A; Dumas, Bitter Thirties, 43–53; Steedman, ‘The Promise’, 61–7; Manley, ‘Communism and the Canadian Working Class’, 499–503; Irving Abella, ed., ‘Portrait of a Jewish Professional Revolutionary: The Recollections of Joshua Gershman’, L/LT 2 (1977): 200–2. On garment strikes in Winnipeg, see Smith, Let Us Rise!, 82–3. Report of the Royal Commission on Price Spreads, 102–4, 113; Desmond Morton, ‘Aid to the Civil Power: The Stratford Strike of 1933’, in Abella, ed., On Strike, 79–91; James D. Leach, ‘The Workers’ Unity League and the Stratford Furniture Workers: the Anatomy of a Strike’, Ontario History 60 (1968): 39–48; LG (Oct. 1933): 974; OA, RG 23, series E–105, box 1, folder 1.4. For other furniture strikes, see LG (Sept. 1933): 903 (Toronto); (Mar. 1934): 226 (Kitchener); Joy Parr, The Gender of Breadwinners (Toronto, 1990), 215–18 (Hanover). On support for NIRA legislation, see LG (Apr. 1934): 309; Edmonton Journal, 1 Mar. 1934, 1 (Tom Moore). An Act to amend the Professional Syndicates’ Act, S.Q. 1930–1, c. 98;

N OT E S

71. 72.

73. 74.

75.

76. 77.

78.

79.

355

Trade Union Law in Canada (1935), 76–8; An Act to amend the acts respecting the organization of Departments, S.Q. 1930–1, c. 19; Roger Chartier, ‘La création du ministère du travail, l’extension juridiques des conventions collectives et les années d’avant-guerre (1931–1939)’, Relations Industrielles 18 (1968): 215–18. Other provinces strengthened their labour administration: Department of Labour Act, S.M. 1931, c. 28; An Act to Provide for a Department of Labour, S.N.S. 1932, c. 3; The Bureau of Labour and Public Welfare Act, S.S. 1934–5, c. 9. An Act respecting the limiting of working hours, S.Q. 1933, c. 40. LG (June 1933): 619; (July 1933): 701 (construction). Richard Mitchell, ‘State Systems of Conciliation and Arbitration: The Legal Origins of the Australasian Model’, in Stuart Macintyre and Richard Mitchell, eds, Foundations of Arbitration (Melbourne, 1989), 74–103; Nathan Reich, Labour Relations in Republican Germany (New York, 1938), ch. 3; Chartier, ‘La création’, 221–2; Jean-Louis Dubé, Décrets et Comités Paritaires (Sherbrooke, 1990), 11–15; Henry W. Ehrmann, French Labor (New York, 1947), 36–59. Montreal Gazette, 9 Feb. 1934. Bora Laskin, ‘Collective Agreements Extension Act Quebec’, Industrial Law Research Council of the Workers’ Educational Association of Ontario, Supplementary Bulletin No. 3, 1935, 11. Céline Saint-Pierre, ‘Idéologie et pratiques syndicales au Québec dans les années ’30: la loi de l’extension juridique de la convention collective de travail’, Sociologie et Sociétés 7, 2 (1975): 5–32; LG (Dec. 1933): 1182–3; (Feb. 1934): 155–6; Montreal Gazette, 13, 24 Feb. 1934; Dubé, Décrets, 15; Margaret Mackintosh, ‘Legislation Concerning Collective Labour Agreements’, Canadian Bar Review 14 (1936): 96–115, 220–46; Steedman, Angels of the Workplace, 208–12. LG (Mar. 1934): 235; Collective Labour Agreement Extension Act, S.Q. 1934, c. 56. An Act to amend the Act respecting the extension of collective labour agreements, S.Q. 1935, c. 64; LG (Apr. 1936): 305; L.C. Marsh, ‘The Arcand Act: A New Form of Labour Legislation?’, Canadian Journal of Economics and Political Science 2 (1936): 415. Michael Brecher, ‘Pattern of Accommodation in the Men’s Garment Industry of Quebec, 1914–54’, in H.D. Woods, ed., Patterns of Industrial Disputes: Settlements in Five Canadian Cities (Montreal, 1958), 100; Mercedes Steedman, ‘Canada’s New Deal in the Needle Trades’, Relations Industrielles 53 (1998): 535–61. LG (Sept. 1933): 874–5; (May 1934): 397; IC (Sept. 1933): 34–5; Ontario, Journals of the Legislative Assembly (19, 28 Mar. 1934), 131–2, 207–9; Toronto Globe, 27, 28, 29 Mar. 1934.

356

NOTES

80. Steedman, Angels of the Workplace, 212–18; Mark Cox, ‘The Limits of Reform: Industrial Regulation and Management Rights in Ontario, 1930–7’, Canadian Historical Review 68 (1987): 552–75; Catherine Briggs, ‘Women, Men and the Minimum Wage in Ontario 1916–1940’, MA thesis (University of Guelph, 1992), 67–94; John T. Saywell, ‘Just Call Me Mitch’: The Life of Mitchell F. Hepburn (Toronto, 1991), 188–91, 206–7; Klee, ‘Between the Scylla and Charybdis of Anarchy and Despotism’, ch. 4; OA, RG 7–12–0–271; Manley, ‘Communism and the Canadian Working Class’, 311–13; Kealey and Whitaker, eds, R.C.M.P. Security Bulletins, 1933–1934, 414, 429; Levine, Class Struggle and the New Deal, 84–5; IC (July 1934): 62 (quote). 81. Saywell, ‘Just Call Me Mitch’, 188–90; Thur, ‘Beat Around the Bush’, 47–8; Industrial Standards Act, S.O. 1935, c. 28. Note: s. 2(a) defined ‘association of employees’, but the term was not used elsewhere in the statute. 82. Cited in Thur, ‘Beat Around the Bush’, 61–2. 83. Edmonton Journal, 8, 15, 21, 22 Feb., 5, 30 Mar., 5, 6, 12, 13, 16 Apr. 1934; The Department of Trade and Industry Act, S.A. 1934, c. 33; Alberta, Legislative Assembly, Bill 65 (1934); LG (May 1936): 424 (retail); (Nov. 1936): 1004–5; Finkel, The Social Credit Phenomenon in Alberta, 43–4. 84. Edmonton Journal, 18 Feb., 16, 18 Apr. 1935; Industrial Standards Act, S.A. 1935, c. 47. 85. A related development requiring further study is legislative support for independent teachers’ associations during this period. For useful discussions, see Harry Smaller, ‘The Teaching Profession Act in Canada: A Critical Perspective’, in Cy Gonick, Paul Phillips, and Jesse Viorst, eds, Labour Gains, Labour Pains: Fifty Years of PC 1003 (Winnipeg, 1995), 341–60; Tom Mitchell, ‘ “We Must Stand Fast for the Sake of Our Profession”: Teachers, Collective Bargaining and the Brandon Schools Crisis of 1922’, Journal of Canadian Studies 26, 1 (1991): 82–99; Rennie Warburton, ‘The Class Relations of Public School Teachers in British Columbia’, in Warburton, ed., Workers, Capital and the State in British Columbia: Selected Papers (Vancouver, 1988), 249–51; J. Douglas Muir, ‘Collective Bargaining by Canadian Public School Teachers’, Study No. 21, Canada Task Force on Labour Relations (Ottawa, 1968), 29–51.

Chapter 8 1. Jacob Finkelman and Bora Laskin, ‘Collective Bargaining’, in Violet Anderson, ed., Problems in Canadian Unity (Toronto, 1938), 82–3. 2. Thompson with Seager, Canada 1922–1939, 277–82.

N OT E S

357

3. Irving Martin Abella, Nationalism, Communism, and Canadian Labour (Toronto, 1973), 3; Penner, Canadian Communism, 140–4; Manley, ‘Communism and the Canadian Working Class’, ch. 6. 4. 49 US Stat. 449 (1935); N.L.R.B. v. Jones and Laughlin Steel Corp. (1937), 301 U.S. 1; Melvyn Dubofsky, The State and Labor in Modern America (Chapel Hill, NC, 1994), 107–31; Robert H. Zieger, The CIO, 1935–55 (Chapel Hill, NC, 1995), 22–9; Tomlins, The State and the Unions, ch. 4. 5. Daniel Nelson, American Rubber Workers & Organized Labor, 1900–1941 (Princeton, NJ, 1988), 170–233; Zieger, The CIO, 29–65. 6. LG (Feb. 1936): 154–9. 7. TLC, Proceedings (1936), 49–50, 126, 129–31, 177–8; Daniel Coates, ‘Organized Labor and Politics in Canada: The Development of a National Labor Code’, Ph.D. thesis (Cornell University, 1973), 34–5; Martin, ‘A Study of Legislation Designed to Foster Industrial Peace’, 284–92. 8. Coates, ‘Organized Labour and Politics in Canada’, 34–5; Tomlins, The State and the Unions, 161–96; LG (Oct. 1937): 1082. 9. TLC, Proceedings (1937), 111–12, 149–50; (1938), 115–17; (1939), 114–15; Martin, ‘A Study of Legislation’, 299–302; Abella, Nationalism, Communism, and Canadian Labour, 33–40. 10. Michael John Earle, ‘Radicalism in Decline: Labour and Politics in Industrial Cape Breton, 1930–1950’, Ph.D. thesis (Dalhousie University, 1991), 139–46; Walter Young, The Anatomy of a Party (Toronto, 1969), 76–82; Keith Archer, Political Choices and Electoral Consequences (Montreal, 1990), 11–16; Penner, Canadian Communism, 145–6. 11. Cruikshank and Kealey, ‘Strikes in Canada’, 85–145. 12. Bill Gillespie, A Class Act (St John’s, 1986); Sutherland, ‘Newfoundland Loggers’, 104–12. 13. H. Fabian Underhill, ‘Recent Canadian Labor Relations Legislation’, Journal of Political Economy 48 (1940): 357–73; A.E. Grauer, Labour Legislation, A Study Prepared for the Royal Commission on DominionProvincial Relations (Ottawa, 1939), 79b–92; Martin, ‘A Study of Legislation’, 292–8, 313–24; Fudge, ‘Voluntarism and Compulsion’, 108–12; ‘Report of the Industrial Relations Committee of CMA’, LG (June 1938): 618; G.V. Nicholls, ‘The Legal Responsibility of Trade Unions’, IC (Dec. 1937): 29–31. 14. Jacob Finkelman, ‘Trends in Employer-Employee Relations—Collective Bargaining in Canada’, in Conference on Industrial Relations, Industrial Relations (Kingston, 1938), 42: There can be no law without common will to obey the law, and that common will cannot be created by the state. The state can plough the field, can sow the seed; but if the earth is barren, life is at an end.

358

15.

16. 17.

18.

19.

20.

NOTES

On attitudes of labour department officials, see Canadian Association of Administrators of Labour Law (CAALL), Proceedings (1939 and later years). Bora Laskin, ‘Picketing: A Comparison of Certain Canadian and American Doctrines’, Canadian Bar Review 15 (1937): 19; TLC, Proceedings (1936), 130 (Federman); An Act to amend the Criminal Code, S.C. 1939, c. 30, s. 11 (creating s. 502A). Smith, Let Us Rise!, 82–4; James H. Gray, The Winter Years (Toronto, 1966), 134–40. LG (Aug. 1937): 844–5; Hurtig v. Reiss, [1937] 3 D.L.R. 426, 433–4 (quote); Allied Amusements Ltd. v. Reaney, [1937] 4 D.L.R. 162; Hurtig v. Reiss, [1937] 4 D.L.R. 433; Bessler v. Matthews, [1938] 3 D.L.R. 470 aff’d. [1939] 1 D.L.R. 499; An Act to amend The Minimum Wage Act, S.M. 1934, c. 29; LG (Feb. 1938): 162; An Act to amend The Fair Wage Act, 1916, S.M. 1938, c. 15, s. 24; S.M. 1934, c. 13 (extended Fair Wage Act to large private construction projects). The Industrial Standards Act, 1936, S.N.S. 1936, c. 3; Nova Scotia, Department of Labour, Annual Report, 1937 (Halifax, 1938), 59–60; LG (Sept. 1936): 832; McKay, The Craft Transformed, 90–6; OA, RG 7–12–0–309 (prior consultation with Ontario); S.N.S. 1937, c. 63 and S.N.S. 1939, c. 58 (amending ISA); The Industrial Standards Act, S.N.B. 1939, c. 57 (applying only to construction). Jacob Finkelman and Bora Laskin, ‘The Industrial Standards Act of Ontario and its Administration’ (Industrial Law Research Council of Workers’ Educational Association, vol. 2, 1, July 1936); Cox, ‘The Limits of Reform’, 566–75; Parr, Gender of Breadwinners, 220–4; Klee, ‘Between the Scylla and Charybdis of Anarchy and Despotism’, chs 4, 8; Rex v. Belyea Bros. Ltd., [1937] O.W.N. 231 (H.C.J.); OA, RG 4–32, DT 1936, FN 317 and DT 1937, FN 2133; Radforth, Bushworkers and Bosses, 134–41; Bruce Magnuson, The Untold Story of Ontario’s Bushworkers (Toronto, 1990), 25–35; Millar, ‘Shapes of Power’, 13–14; Thur, ‘Beat Around the Bush’, 60–6. Cox, ‘Limits of Reform’, 572–5; Catherine Briggs, ‘Women, Men and the Minimum Wage in Ontario 1916–1940’, MA thesis (University of Guelph, 1992), 71–81; Laura Landry, ‘Law and Labour Unrest in Ontario’s Textile Industry: Cornwall, 1936 and Peterborough, 1937’, MA thesis (Carleton University, 1995); The Industrial Standards Amendment Act, 1936, S.O. 1936, c. 29; The Department of Labour Amendment Act, 1937, S.O. 1937, c. 17; The Industrial Standards Amendment Act, 1937, S.O. 1937, c. 32; The Government Contracts Hours and Wages Act, 1936, S.O. 1936, c. 26; ‘Annual Report of the Industrial Relations Committee, Canadian Manufacturers’ Association’, LG (June 1937): 642; The Minimum Wage

N OT E S

21. 22.

23.

24.

25.

26.

27.

28. 29.

359

Act, S.O. 1937, c. 43; LG (Mar. 1938): 292–4. For legal interventions in textile disputes, see OA, RG 7–12–0–471.2; LG (June 1937): 612 (Kincardine); (June 1937): 848; (Sept. 1937): 964, (Peterborough); (Apr. 1938): 379; OA, RG 7–4–0–15 (Woodstock). For unsuccessful mediation efforts, see OA, RG 7–4–0–6 (Canada Cottons—Cornwall); RG 7–4–0–11 (Monarch Knitting—Hamilton); RG 7–12–0–471.1 (Circle Bar Knitting— Kincardine). For settlement details, see H.W. Macdonnell, ‘Minimum and Fair Wage Legislation’, in Industrial Relations (Kingston, 1938), 68. The Fair Wages Act, S.N.B. 1936, c. 51; LG (Apr. 1936): 327. Parenteau, ‘Forest and Society in New Brunswick’, 424–52; LG (Sept. 1940): 926; CAALL, Proceedings (1939), 69; LG (Mar. 1938): 296; (June 1938): 652. Elaine Francis Geddes, ‘Alberta Labour Legislation, under the Social Credit Government: 1935–1947’, LL.M. thesis (University of Alberta, 1990), 38–42, 52–8; The Male Minimum Wage Act, S.A. 1936, c. 76; The Hours of Work Act, S.A. 1936 (2nd Sess.), c. 5; An Act to Repeal the Bureau of Labour Act, S.A. 1937, c. 7; LG (Oct. 1937): 1100; (Feb. 1938): 165–6; The Male Minimum Wage Amendment Act, S.A. 1938, c. 58; The Industrial Standards Amendment Act, S.A. 1938, c. 56. Dumas, Bitter Thirties, 55–67; Eugene Forsey, ‘Clerical Fascism in Quebec’, Canadian Forum (June 1937): 90–2; Terry Copp, ‘The Rise of Industrial Unions in Montréal 1935–1945’, Relations Industrielles 37 (1982): 849–50; Steedman, Angels of the Workplace, 244–52; International Ladies’ Garment Workers’ Union v. Rothman, reported in LG (May 1939): 544; NAC, John Jacob Spector Papers, MG 30, A106, ILGWU v. Chas. Rothman. LG (Mar. 1937): 305; Quebec, Legislative Assembly, Journals (10 May 1937), 250–1; An Act respecting workmen’s wages, S.Q. 1937, c. 49, ss. 1, 6, 39; Montreal Gazette, 14 May 1937 (quote); LG (Feb. 1938): 164 (TLC seeking FTUAA). An Act to assure reasonable wages for workmen engaged in forest operations, S.Q. 1937, c. 30; S.Q. 1936, c. 17 (repealing previous act); Fair Wage Act, S.Q. 1937, c. 50. J.A.P. Haydon, ‘Quebec Swings to the Extreme Left’, Canadian Forum (Aug. 1937): 160–1; LG (Oct. 1937): 1087; (Feb. 1937): 162–5; Rouillard, Histoire du Syndicalisme au Québec, 172–4. LG (Sept. 1937): 964–5; Rouillard, History of the Labour Movement in Quebec, 132–3; Copp, ‘Rise of Industrial Unions’, 851–2. For reports of injunctions, see LG (June 1936): 485; (July 1936): 575, (Toronto laundry workers); (Aug. 1936): 693; (Oct. 1936): 880 (Toronto restaurant workers); (Nov. 1936): 986 (Windsor hotel workers). Klee, ‘Between Scylla and Charybdis’, ch. 8; Bassel’s Lunch Ltd. v. Kick,

360

30.

31.

32.

33. 34.

35. 36.

NOTES

[1936] 4 D.L.R. 106, 110–11; Bora Laskin, ‘The Labour Injunction in Canada: A Caveat’, Canadian Bar Review 35 (1937): 278; OA, RG 7–12–0–396; OA, RG 4–32, DT 1936, FN 1217 (magistrate refusing to charge Bassel); NAC, J.L. Cohen Papers, MG 30, A94, vol. 6, file 2566; J.L. Cohen, ‘Injunctions Against Picketing’, Canadian Forum (Sept. 1936): 10–12. Toronto Clarion, 6 June 1936, cited in Klee, ‘Between Scylla and Charybdis’, 314; Landry, ‘Law and Labour Unrest’, ch. 3; LG (Sept. 1936): 776; (Oct. 1936): 880; (Jan. 1937): 19, (June 1937): 611; John Manley, ‘Communists and Autoworkers: The Struggle for Industrial Unionism in the Canadian Automobile Industry, 1925–36’, L/LT 17 (1986): 130–2; NAC, J.L. Cohen Papers, MG 30, A94, vol. 7, file 2593; OA, RG 7–12–362 (SWOC drive). Duart Snow, ‘The Holmes Foundry Strike of March 1937: “We’ll give their jobs to white men!” ’, Ontario History 64 (1977): 29 (quote from Windsor Star, 6 Mar. 1937); LG (Apr. 1937): 409–10; OA, RG 7–30–0–24; Patricia Drimmie, A History of Labour in Sarnia and Lambton County (Sarnia, 1980?), ch. 2; Canadian Forum (Apr. 1937): 7–8; OA, RG 7–12–0–471.2 (Kingsville tobacco workers). Snow, ‘Holmes Foundry’, 27 (Hepburn quote), 12 (Canadian Observer quote); NAC, J.L. Cohen Papers, MG 30, A94, vol. 7, file 2602; LG (Apr. 1937): 391 (Lapointe quote); ‘Is the Sit-Down Strike a Crime?’, Canadian Forum (Apr. 1937): 7. OA, RG 7–30–0–2. Irving Abella, ‘Oshawa 1937’, in Abella, ed., On Strike, 93–128; Felix Lazarus, ‘The Oshawa Strike’, Canadian Forum (June 1937): 88–9; Norman J. Ware, ‘The History of Labor Interaction’, in H.A. Innis, ed., Labor in Canadian-American Relations (Toronto, 1937), 63–71; Saywell, ‘Just Call Me Mitch’, 303–33 (more positive view of Hepburn’s role). OA, RG 23, series E–105, box 1, folder 1.8; Abella, Nationalism, Communism and Canadian Labour, 17 (Croll quote). Laurel Sefton MacDowell, ‘After the Strike—Labour Relations in Oshawa, 1937–1939’, Relations Industrielles 48 (1993): 695–700; Sam Gindin, The Canadian Auto Workers: The Birth and Transformation of a Union (Toronto, 1995), 49–71; LG (June 1937): 613; (Oct. 1938): 1084 (other UAW strikes); NAC, J.L. Cohen Papers, MG 30, A94, vol. 10, file 2640 (customs interference). On the SWOC, see Robert H. Storey, ‘The Struggle to Organize Stelco and Dofasco’, Relations Industrielles 42 (1987): 370–5; Abella, Nationalism, Communism and Canadian Labour, 55; OA, RG 7–12–0–399; OA, RG 7–30–0–12 (General Steel Wares); OA, RG 7–4–0–3 (International Metal Industries). On the UE, see Doug

N OT E S

37.

38.

39. 40.

41.

42.

43. 44.

45. 46.

361

Smith, Cold Warrior: C.S. Jackson and the United Electrical Workers (St John’s, 1997), ch. 4; Terry Copp, The I.U.E. in Canada (Elora, Ont., 1980), 5–6; OA, RG 7–12–0–556. On Mine-Mill, see Solski and Smaller, Mine Mill, 70; OA, RG 23, Series E–105, box 1, folders 1.1, 1.7. Kim Adair, Peter Pautler, and David Strang, ‘The U.R.W.A. and the Struggle for Union Recognition: 1937–39’, in Terry Copp, ed., Industrial Unionism in Kitchener 1937–47 (Elora, Ont., 1976), 2–15; Nelson, American Rubber Workers, 253–4; LG (Oct. 1937): 1073; (Nov. 1937): 1183; (Dec. 1937): 1321; OA, RG 7–4–0–9, A.R. Kaufman to Department of Labour, 28 Oct. 1937 (quote). OA, RG 7–30–0–27, A.R. Kaufman to Louis Fine, 14 Oct. 1937 (quote); OA, RG 7–12–0–465 (police reports); OA, RG 7–30–0–29 (Viceroy); OA, RG 7–12–0–471 (Northern); OA, RG 7–4–0–9, RG 7–12–0–465. Frank Fraser, ‘Labor Cracks the Rubber Front’, Canadian Forum (Apr. 1939): 7–8. On this and other related strikes, see Adair et al., ‘U.R.W.A.’, 15–28; LG (Apr. 1939): 379–80; (June 1939): 552–3; (July 1939): 600; (Aug. 1939): 799–801; OA, RG 7–1–0–329; OA, RG 7–30–0–34; OA, RG 7–30–0–57; OA, RG 7–1–0–328; OA, RG 7–30–0–85 (Goodrich); OA, RG 7–1–0–322; OA, RG 7–30–0–84 (Sieberling). OA, RG 23, series E–105, box 1, folder 1.1, G.D. Conant, Memo to Law Enforcement Officers Re Picketing, 31 Oct. 1938; OA, RG 7–4–0–10, G.D. Conant, Re: Humberstone, 26 Oct. 1938 (quote); OA, RG 4–32, DT 1939, FN 950; OA, RG 7–30–0–47; LG (Nov. 1938): 1223. LG (Feb. 1937): 169; (Feb. 1938): 167 (earlier unsuccessful efforts); Toronto Globe, 13, 26, 29 Apr. 1939; Duff Munro, ‘Labor Legislation 1939’, Canadian Forum (June 1939): 74–5; LG (June 1939): 575–6; Millar, ‘Shapes of Power’, 8–11. OA, RG 7–12–0–477, Report of Louis Fine, Chief Conciliation Officer, to Deputy Minister, 1938. S.Q. 1936, c. 2, c. 24, c. 25 (Collective Agreement Extension) and c. 33 (Professional Syndicates); Act Respecting Communistic Propaganda, S.Q. 1937, c. 11; Thompson with Seager, Canada 1922–1939, 284–5, 291. An Act respecting workmen’s wages, S.Q. 1937, c. 49, s. 39; Fair Wage Act, S.Q. 1937, c. 50, s. 23; LG (Feb. 1938): 164. An Act to amend the Act respecting Workmen’s Wages, S.Q. 1938, c. 52 (also renaming the Act as the Collective Labour Agreements Act); An Act to amend the Fair Wages Act, S.Q. 1938, c. 53; An Act to facilitate the exercise of certain rights, S.Q. 1938, c. 96 (undoing the holding in Society Brand v. Amalgamated Clothing Workers); Laskin, ‘The Legal Status of Trade Unions in Canada’, 98; ‘Trade Unions in Quebec’,

362

47.

48.

49.

50. 51. 52. 53.

54.

55.

56.

NOTES

Canadian Forum (May 1938): 36; ILGWU v. Rothman; Rouillard, Histoire du Syndicalisme au Québec, 172–3; LG (Mar. 1939): 293–8. CAALL, Proceedings (1939), 65–7 (centrality of collective bargaining); CAALL, Proceedings (1940), 150 (Gustave Francq, Vice-Chairman, Fair Wage Board: ‘it is a very difficult thing to prove that a man has been dismissed for union activities’). Tsang v. Local No. 118, Hotel and Restaurant Employees International Alliance, [1937] 3 W.W.R. 621 (picketers in contempt); Glen Makahonuk, Class, State and Power: The Struggle for Trade Union Rights in Saskatchewan, 1905–1997 (Saskatoon, 1997), 12 (quote, T.M. Molloy to Hon. R.J.M. Parker, 6 Jan. 1938); Makahonuk, ‘Masters and Servants: Labour Relations in the Saskatchewan Civil Service, 1905–1945’, Prairie Forum 12 (1987): 258–9; The Industrial Standards Act, S.S. 1937, c. 90; The Freedom of Trade Union Association Act, S.S. 1938, c. 87. Gerald Friesen, The Canadian Prairies: A History (Toronto, 1984), 277–80, 400–3; The Strikes and Lockouts Prevention Act, S.M. 1937, c. 40, ss. 44–6; LG (May 1937): 510; (Feb. 1938): 161; (Feb. 1939): 167–9; TLC, Proceedings (1937), 55–6. Patrick Burden, ‘The New Brunswick Farmer-Labour Union, 1937–1941’, MA thesis (University of New Brunswick, 1983), ch. 2. Marjorie Taylor-Morrell, Of Mines and Men (St Stephen, NB, 1981), 114 (McNair quote). Seager, ‘Minto, New Brunswick’, 116–26. New Brunswick, Legislative Assembly, Synoptic Report of the Proceedings (23 Mar. 1938), 157–8, (6 Apr.) 211; Labour and Industrial Relations Act, S.N.B. 1938, c. 68; Burden, ‘New Brunswick Farmer-Labour Union’, 84–5; ‘And in New Brunswick’, Canadian Forum (May 1938): 36. Burden, ‘New Brunswick Farmer-Labour Union’, 106–7 (McEachern quote); LG (Mar. 1939): 289–90; An Act to amend Chapter 68 of 2 George VI, (1938), Labour and Industrial Relations Act, S.N.B. 1939, c. 41; CAALL, Proceedings (1939), 67–70 (Pettigrove). David Frank and John Manley, ‘The Sad March to the Right: J.B. McLachlan’s Resignation from the Communist Party of Canada, 1936’, L/LT 30 (1992): 115–34; Michael Earle, ‘The Coalminers and their “Red” Union: The Amalgamated Mine Workers of Nova Scotia, 1932–36’, L/LT 22 (1988): 130–5. Halifax Herald, 25 Mar. 1937, 1 Apr. 1937; Trade Union Act, S.N.S. 1937, c. 6; David Frank and Donald MacGillivray, eds, George MacEachern: An Autobiography (Sydney, 1987), 75–8; Ron Crawley, ‘What Kind of Unionism: Struggles Among Sydney Steelworkers in the SWOC Years, 1936–1942’, L/LT 39 (1997): 99–123; Earle, ‘Radicalism in

N OT E S

57.

58.

59.

60.

61. 62. 63.

363

Decline’, 227–36; MacEwan, Steelworkers and Miners, ch. 16; Abbott, ‘The Coal Miners and the Law in Nova Scotia’, 38–9; ‘Nova Scotia and Labor’, Canadian Forum (June 1937): 79. Earle, ‘Radicalism in Decline’, 239–53; Abella, Nationalism, Communism and Canadian Labour, 55. For discussion of a failed effort by fishers and fish processors to use the Act, see L. Gene Barrett, ‘Underdevelopment and Social Movements in the Nova Scotia Fishing Industry to 1938’, in Robert J. Brym and R. James Sacouman, eds, Underdevelopment and Social Movements in Atlantic Canada (Toronto, 1979), 145–50. Unions won five of six plebiscites held in 1937. None were held in 1938 or 1939. See Nova Scotia, Department of Labour, Annual Reports, 1937–9. Edward Bell, Social Classes and Social Credit in Alberta (Montreal, 1993), 61–74, 107–28; David Laycock, Populism and Democratic Thought in the Canadian Prairies, 1910–1945 (Toronto, 1990), 203–66; Finkel, The Social Credit Phenomenon in Alberta, 41–72; Alvin Finkel, ‘Alberta Social Credit Reappraised: The Radical Character of the Early Social Credit Movement’, Prairie Forum 11 (1986): 69–86; Larry Hannant, ‘The Calgary Working Class and the Social Credit Movement in Alberta, 1932–35’, L/LT 16 (1985): 97–116; David R. Elliott, ‘William Aberhart: Left or Right’, in R.D. Francis and H. Ganzevoort, eds, The Dirty Thirties in Prairie Canada (Vancouver, 1980), 11–31; Elaine Francis Geddes, ‘Alberta Labour Legislation under the Social Credit Government: 1935–1947’, LL.M. thesis (University of Alberta, 1990). John Herd Thompson and Allen Seager, ‘Workers, Growers and Monopolists: The “Labour Problem” in the Alberta Beet Sugar Industry During the 1930s’, L/LT 3 (1978): 153–74; Geddes, ‘Alberta Labour Legislation’, 47–8. David Bright, ‘Meatpackers’ Strike at Calgary, 1920’, Alberta History 44, 2 (1996): 2–10; John Tait Montague, ‘Trade Unionism in the Canadian Meat Packing Industry’, Ph.D. thesis (University of Toronto, 1948), 82–3, 103–10; Caragata, Alberta Labour, 127–9; LG (Mar. 1937): 300–1; (May 1937): 490–1. The Industrial Conciliation and Arbitration Act, S.A. 1938, c. 57, s. 5; LG (Feb. 1938): 166; Geddes, ‘Alberta Labour Legislation’, 51–2, 58–61. LG (Feb. 1937): 171; (Mar. 1937): 298; British Columbia, Department of Labour, Annual Report (1936), 70–2; Montague, ‘Trade Unionism’, 96–9. Industrial Conciliation and Arbitration Act, S.B.C. 1937, c. 31; Andrew Parnaby, ‘ “We’ll hang all policemen from a sour apple tree!”: Class, Law and the Politics of State Power in the Blubber Bay Strike of 1938–39’, MA thesis (Simon Fraser University, 1995), 21–31; Parnaby, ‘What’s Law Got to Do With It? The IWA and the Politics of State Power

364

64.

65.

66.

67. 68.

69.

70. 71.

NOTES

in British Columbia, 1935–1939’, L/LT 44 (1999): 9–45; Harold E. Winch, ‘The British Columbia Labor Act’, Canadian Forum (Feb. 1939): 330–1; Phillips, No Power Greater, 115–17. British Columbia, Department of Labour, Annual Report (1938), 82–4, 88–90; LG (Apr. 1938): 382; (July 1938): 741–2; (Oct. 1938): 1085–6; (Jan. 1939): 35; (Feb. 1939): 139; (Mar. 1939): 283; (Apr. 1939): 380–1; Barry Mather, ‘Blubber Bay’, Canadian Forum (Dec. 1938): 263; John Stanton, Never Say Die! The Life and Times of John Stanton, a Pioneer Lawyer (Ottawa, 1987), 13–27; Parnaby, ‘ “We’ll hang all policemen” ’, 32–89; R.S. Ratner and John L. McMullan, ‘State Intervention and the Control of Labour in British Columbia: A Capital-Logic Approach’, in T.C. Caputo et al., eds, Law and Society: A Critical Perspective (Toronto, 1989), 239–41; Stonier-Newman, Policing a Pioneer Province, 197–8. Hollywood Theatres Ltd. v. Tenney, [1939] 1 D.L.R. 798 (B.C.S.C.), [1939] 2 D.L.R. 745 (B.C.C.A.), [1940] 1 D.L.R. 452 (B.C.C.A.); LG (July 1937): 850; (Dec. 1938): 1340. Canada, House of Commons Debates (18 Mar. 1938): 1492; Industrial Conciliation and Arbitration Act Amendment Act, 1938, S.B.C. 1938, c. 23; British Columbia, Department of Labour, Annual Report (1939), 83–4; Winch, ‘British Columbia Labor Act’, 330; LG (Nov. 1939): 1096; (Dec. 1939): 1219; (Feb. 1940): 106–7; (Mar. 1940): 206; CAALL, Proceedings (1940), 140–2 (Bell). An Act to amend the Criminal Code (Bill 26); Canada, House of Commons Debates (9 May 1939), 3788–92. Martin, ‘A Study of Legislation’, 303–10; Canada, House of Commons Debates (9 Apr. 1937), 2854 (Lapointe), (25 Feb. 1938), 840 (Lapointe), (18 Mar. 1938), 1492 (Rogers), (17 May 1938), 2971–3 (Rogers), (25 Feb. 1938), 839 (Woodsworth: ‘Let me point out that today property is well protected, as it has always been. . . . There is one law distinctly for the employer in the protection of his property and an altogether different law or no law when it comes to the protection of the worker in his job, which often is the only thing he has.’), (17 May 1938), 2974 (Rogers). LG (Feb. 1938): 142–5; (Jan. 1939): 41; Coates, ‘Organized Labor and Politics in Canada’, 56–60; An Act to Amend the Criminal Code, S.C. 1939, c. 30, s. 11; Canada, House of Commons Debates (27 Apr. 1939), 3304; LG (Jan. 1939): 41. Canada, House of Commons Debates (27 Apr. 1939), 3306. Abella, Nationalism, Communism and Canadian Labour, 23–40; Cruikshank and Kealey, ‘Strikes in Canada’, 134; Laskin, ‘Legal Status’, 101–2; J. Finkelman, ‘Freedom of Association and the Law’ (Industrial Law Research Council, vol. 4, 1, Apr. 1939). The Canadian Association

N OT E S

365

of Administrators of Labour Law was founded in 1938 and began holding annual meetings in 1939. 72. ‘Unions Can Help Industry’, Toronto Globe, 27 Apr. 1939; e.g. Bora Laskin, ‘The Wagner Act and Collective Bargaining’ (Industrial Law Research Council of the Workers’ Education Association, vol. 2, 5, Dec. 1937), 71. 73. John C. Davis, ‘Should Unions Incorporate’, Canadian Forum (Nov. 1938): 235–7.

Chapter 9 1. Bora Laskin, ‘Industrial Relations and Social Security’, Public Affairs (Fall 1944): 48. 2. M.C. Urquhart, ed., Historical Statistics of Canada, 2nd edn (Ottawa, 1983), E–176–89. 3. Ramsay Cook, ‘Canadian Liberalism in Wartime: A Study of the Defence of Canada Regulations and Some Canadian Attitudes to Civil Liberties in Wartime, 1939–45’, MA thesis (Queen’s University, 1955), 55–6; Reg Whitaker, ‘Official Repression of Communism During World War II’, L/LT 17 (1986): 136–9. 4. NAC, J.L. Cohen Papers, MG 30, A 94, vol. 14, file 277, R. v. Charles Millard, Proceedings re Charge of Contravention of Defence of Canada Regulations, Timmins, Ont., 1939–40; Cook, ‘Canadian Liberalism’, 178–9, 185–6; Abella, Nationalism, Communism and Canadian Labour, 46; Canada, House of Commons Debates (20 Nov. 1941), vol. 1, 90; Re Rex v. Burt, [1941] O.W.N. 17 (Ont. H.C.); Bora Laskin, ‘Case and Comment: R. v. Burt’, Canadian Bar Review 19 (1941): 134; C.M.A. Grube, ‘Labor and the Government’, Canadian Forum (Mar. 1941): 369–71. 5. Canada, House of Commons Debates (14 May 1941), vol. 3, 2810; (4 May 1942), vol. 2, 2096. 6. The Ontario Court of Appeal affirmed the lower court’s decision without even bothering to hear from the Crown; Ex parte Sullivan, [1941] 1 D.L.R. 676; [1942] 2 D.L.R. 799. 7. Cook, ‘Canadian Liberalism’, 182–3; William Kaplan, Everything that Floats: Pat Sullivan, Hal Banks, and the Seamen’s Unions of Canada (Toronto, 1987), 33–5; Smith, Cold Warrior, 78–81, 89; Whitaker, ‘Official Repression’, 154–5. 8. Cook, ‘Canadian Liberalism’, 195–8, 252–65. 9. NAC, RG 27, 254, 721.02:1, memorandum to King submitted by the TLC, 5 Oct. 1939. 10. Frederick David Millar, ‘Shapes of Power: The Ontario Labour Relations Board, 1944–1950’, Ph.D. thesis (York University, 1980), 20; OA,

366

11.

12.

13.

14.

15.

16.

NOTES

Hepburn Papers, box 296, ‘CIO 1939’; NAC, CMA Papers, MG 28, I 230, accession no. 83/38, Minutes of the Industrial Relations Committee, 9 Nov. 1939; NAC, RG 27, vol. 28, file 33, Memorandum of meeting between N.O. Hipel, Ontario Labour Minister, and Norman McLarty, 24 Jan. 1940; J.L. Cohen, Collective Bargaining in Canada (Toronto, 1941), 13. Coates, ‘Organized Labor and Politics in Canada’, 68–74; J.W. Pickersgill, The Mackenzie King Record, vol. 1 (Toronto, 1960), 159–63; Stephen Gray, ‘Woodworkers and Legitimacy: The IWA in Canada, 1937–1957’, Ph.D. thesis (Simon Fraser University, 1989), 79; Peter Stuart McInnis, ‘Harnessing Confrontation: The Growth and Consolidation of Industrial Legality in Canada, 1943–59’, Ph.D. thesis (Queen’s University, 1996), 65–8; NAC, RG 35, series 7, vol. 21, file 18, Wartime Labour Relations, Industrial Relations Branch, Department of Labour, Historical Account of the Legislation Administered by the Industrial Relations Branch, Mar. 1946; LG (Nov. 1943): 25–9. NAC, MG 26, J 4, vol. 299, file 3079, Memorandum submitted by W.J. Turnbull, Principal Secretary to the Prime Minister, to W.L.M. King, 1 June 1940; NAC, RG 27, vol. 80, file 401:55, vol. 1, Memorandum with respect to a meeting held on 13 June 1940, at 11 a.m., between the members of the federal government and leaders of organized labour; NAC, MG 28, I 230, accession no. 83/38, Minutes of the Industrial Relations Committee, 9 Nov. 1939. NAC, RG 27, vol. 254, file 721.02:1, Memorandum submitted by the Assistant Deputy Minister of Labour, 5 Mar. 1940; NAC, Public Records Committee, RG 35, series 7, vol. 21, file 18, Historical Account of the legislation administered by the Industrial Relations Branch, prepared under the direction of M.M. Maclean, Mar. 1946, 3. NAC, RG 27, vol. 897, file 8–9–74, pt. 1, Memorandum for discussion by the Committee on Labour Coordination at the meeting of 30 Oct. 1940, by H.B.Chase; NAC, RG 27, vol. 147, file 611.1:11, vol. 2, Minutes of the meeting of the NLSC held on 29 Nov. 1940; NAC, RG 27, vol. 142, file 611.1:11, vol. 2, Minutes of the meeting of the NLSC, 9 Dec. 1940, 1–4; NAC, MG 28, I 103, accession no. 80/289, CCL-BC General Correspondence 1940, Norman S. Dowd, Secretary Treasurer of the CCL, to George Burt, Director, Region 7, UAW, 10 Feb. 1941. NAC, RG 35, 7, vol. 21, file 18, Historical account of the legislation administered by the Industrial Relations Branch, prepared under the direction of M.M. Maclean, 17–21. H.N. Drennon, ‘The Industrial Relations Policy of the Canadian Dominion Government’, Ph.D. thesis (Duke University, 1951), 19; Laurel Sefton MacDowell, ‘The Formation of the Canadian Industrial Relations

N OT E S

17.

18.

19.

20.

367

System During World War II’, L/LT 3 (1978): 183–5; LG (Apr. 1941): 372, 375–6, 382–5; NAC, W.L.M. King, Primary Series Correspondence, MG 26, J 1, vol. 310, McLarty to King, 21 May 1941; NAC, RG 27, vol. 273, file, Minutes of the meeting of the NLSC, 27 Jan. 1941, 3; NAC, J.L. Cohen Papers, MG 30, A94, vol. 24, file 2848, ‘Suggestions for the Application of Order in Council PC 7440 by Boards of Conciliation and Investigation’; LG (Oct. 1941): 1243, 1247; NAC, RG 27, vol. 631, file 60, A.R. Mosher to McLarty, 21 Apr. 1941; NAC, RG 27, vol. 273, NLSC, C.H. Millard to A.J. Hills, 25 Apr. 1941. Russell, Back to Work?, 91–7; Neil Layton Fergusson, ‘Collective Bargaining and Order in Council PC 1003’, MCL thesis (McGill University, 1947), 84, 89; Allen Henry Hollingworth, ‘War-time Labour Policy of the Dominion Government’, BA thesis (Queen’s University, 1942), 9–10; Bryan Mahn and Ralph Schaffner, ‘The Packinghouse Workers in Kitchener: 1940–47’, in Terry Copp, ed., Industrial Unionism in Kitchener, 1937–47 (Elora, Ont., 1976), 32–3; Martin, ‘A Study of Legislation’, 333; Patrick Hanford Burden, ‘The New Brunswick Farmer-Labour Union, 1937–41’, MA thesis (University of British Columbia, 1980), 129–36. David Bright, The Limits of Labour: Class Formation and the Labour Movement in Calgary, 1883–1929 (Vancouver, 1998), 150; MacEwan, Miners and Steelworkers, 218–23; Crawley, ‘What Kind of Unionism’, 113–5. Rubenstein v. Kumer, [1940] O.W.N. 153; Wasserman v. Soper, [1942] O.R. 313; Canadian Dairies Ltd. v. Seggie, [1940] 4 D.L.R. 725; Bora Laskin, ‘Case and Comment’, Canadian Bar Review 20 (1942): 639; Shane v. Lupovich, [1942] 4 D.L.R. 390 (Que. K.B.), 397; The Statute Law Amendment Act, S.O. 1942, c. 34, s. 18; LG (Nov. 1939): 1097; (May 1940): 441; (June 1940): 642. LG (May 1940): 442; (May 1940): 443; (June 1940): 542; (Dec. 1940): 1246; (May 1941): 542; criminal charges were brought against hosiery factory workers in Toronto: LG (July 1941): 787; (Aug. 1941): 945, 946; (Sept. 1941): 1094–5; (Oct. 1941): 1221; G.M.A. Grube, ‘Wanted: A Minister of Labor’, Canadian Forum (July 1942): 110–13; LG (Nov. 1939): 1092, 1095, 1098; (Dec. 1939): 1218–20; (Jan. 1940): 12–14; John Stanton, The Life and Death of a Union: The Canadian Seamen’s Union (Toronto, 1978), 16–19; Bloedel, Stewart & Welch Ltd. v. Stewart et al., [1942] 3 W.W.R. 506; [1943] 1 W.W.R. 128 (B.C.C.A.); LG (Nov. 1939): 1096; (Dec. 1939): 1219; (Feb. 1940): 106–7; Stanton, Never Say Die!, 46, 50, 51. PC 3747, dated 7 Aug. 1940, allowed the provincial attorneys general to delegate the power to invoke the aid to civil power to Crown attorneys and magistrates with the costs to be paid for by the province.

368

21.

22.

23.

24. 25. 26. 27.

28.

NOTES

OA, Ministry of Labour, Minister Correspondence, RG 7–1–0–408, Strikes, Disputes—General file, 1939–40, to All Ontario Trade Unions and Unionists from George Burt, 12 Feb. 1940; to George Burt from G.D. Conant, Attorney General of Ontario, 20 Mar. 1940. Montague, ‘Trade Unionism in the Canadian Meatpacking Industry’, 149; NAC, Department of Justice, RG 13, vol. 2571, file 146905, correspondence regarding the unfair labour practice by the Stephenson Adamson Co. of Belleville, Ont., and the prosecution of Chez-Moi in Toronto; OA, RG 7–1–0–408, Strikes, Disputes—General file, 139–40, Brief by the United Electrical, Radio & Machine Workers of America, 29 May 1940, charging Canada Wire & Cable Co. with intimidation and discrimination against its employees; H.A. Logan, Trade Unions in Canada (Toronto, 1948), 275–9; Hollingworth, ‘The War-time Labour Policy of the Dominion Government’, 8; Toronto Daily Star, 17 Feb. 1942; Society Brand Clothes v. R., [1942] Que. K.B. 535; 70 C.C.C. 351 (Que. C.A.); LG (July 1942): 872–3; (Feb. 1943): 272–3; NAC, RG 27, vol. 147, file 611.1:11, vol. 2, Minutes of the meeting of the NLSC, 29 Nov. 1940, 2; G.M.A. Grube, ‘Notes on Labor’, Canadian Forum (Aug. 1942): 138–9; Proceedings (1941), 169, 175; G.A. Grube, ‘Two Strikes in Steel’, Canadian Forum (June 1941): 77; OA, RG 7–12–0–696, 22 Feb. 1940, letter from Tom Moore complaining that the Watson Manufacturing Company in Brampton discriminated against an employee for participating in a strike; NAC, J.L. Cohen Papers, MG 30, A 94, vol. 14, file 2768, dismissal of Walter Cam by John B. Inglis; Norman McLarty to Millard, 24 Jan. 1940. Cohen, ‘Collective Bargaining in Canada’, 20–1; Grube, ‘Two Strikes in Steel’, 77–8; G.M.A. Grube, ‘Labor Conciliation and the Government’, Canadian Forum (Aug. 1941): 139–41; LG (May 1941): 527–30; NAC, MG 30, A 94, vol. 24, file 2848, J.L. Cohen to McLarty, 18 May 1941, 9; MacDowell, ‘The Formation of the Canadian Industrial Relations System’, 181–2. NAC, RG 2, 7c, vol. 6, microfilm reel c-4654, Cabinet War Committee Minutes, 29, 31 July 1941. H.A. Logan, Trade Unions in Canada (Toronto, 1948), 263–5; LG (Aug. 1941): 878, 880. Cruikshank and Kealey, ‘Strikes in Canada’, 118; Logan, Trade Unions in Canada, 544; LG (Oct. 1941): 1243, 1296. NAC, MG 28, I 103, vol. 7, W.L.M. King, 1939–41, Mosher to King, 21 Mar. 1941; King to Mosher, 26 Mar. 1941; Russell, Back to Work?, 192; LG (Aug. 1943): 1122–3, 1126; (Sept. 1943): 1243, 1300. NAC, MG 28, I 103, vol. 191, part 2, 1941, Millard to Hills, 17 Mar. 1941; NAC, MG 28, I 103, vol. 18, file 118–11, Millard, 1940–5, part 1, Mosher

N OT E S

29.

30.

31. 32. 33.

34.

35. 36. 37.

38. 39. 40.

369

to Millard, 20 Mar. 1941; Abella, Nationalism, Communism and Canadian Labour, 66–8; Smith, Cold Warrior, 69–72. The CMA was opposed to the representation votes. NAC, MG 28, I 230, accession no. 83/138, Minutes of the Industrial Relations Committee of the CMA, 17 Apr. 1941; NAC, Privy Council Office, Cabinet War Committee, RG 2, 7c, microfilm reel c-4653A, Minutes of the Cabinet War Committee, 5 May 1941; NAC, RG 27, vol. 121, file 602, Brief submitted to W.L.M. King by Harold Crabtree, President of the CMA, 5 May 1941. NAC, RG 2, 7C, c-4653A, Minutes of the Cabinet War Committee, 5 May 1941; NAC, RG 27, vol. 121, file 602, telegram from Harold Crabtree to McLarty, 11 June 1941. NAC, RG 2, 7C, microfilm reel c-4653A, Minutes of the Cabinet War Committee, 30 May 1941. CAALL, Proceedings (1941), 171; Bryce M. Stewart, ‘General Review of Labour Situation’, IC (July 1941): 92. NAC, RG 27, vol. 636, file 157, Memorandum re Wartime Wages Policy from W.J. Couper to the Deputy Minister of Labour, 16 June 1941, 6; CAALL, Proceedings (1942), 194–5. Michael Earle, ‘Down with Hitler and Silbey Barrett: The Cape Breton Miners’ Slowdown Strike of 1941’, in Earle, ed., Workers and the State in Twentieth Century Nova Scotia, 109–43; MacEwan, Miners and Steelworkers, 225–38; Jamieson, Times of Trouble, 289; Abbott, ‘The Coal Miners and the Law in Nova Scotia’, 40. Canada, House of Commons Debates (6 June 1941), 3268. IC (July 1941): 191; NAC, RG 27, vol. 638, file 201, photocopy of The Labour Review, June 1941. Canada, House of Commons Debates (6 June 1941), 3603, 3607, 3618; NAC, MG 28, I 103, vol. 4, Federal Government Correspondence, 1939–41, Norman S. Dowd, Secretary-Treasurer of the CCL, to Pat Conroy, Vice-President of the CCL, 11 June 1941; 4–5 Geo. VI, c. 20. NAC, RG 27, vol. 273, Minutes of the National Labour Supply Council, 2 June 1941, 3. IC (July 1941), 190; NAC, RG 27, vol. 254, file 721.021, Norman McLarty to W. Stuart Edwards, Deputy Minister of Justice, 9 June 1941. MacEwan, Miners and Steelworkers, 220–1; Mahn and Schaffner, ‘The Packinghouse Workers in Kitchener’, 32–3; Burden, ‘The New Brunswick Farmer-Labour Union’, 124–36; Smith, Cold Warrior, 78–81, 94; Rex v. Martin, [1942] O.R. 110; ‘Case and Comment’, Canadian Bar Review 20 (1942): 260–2; LG (July 1941): 786–7, 789; (Aug. 1941): 941; (Jan. 1942): 28; (Mar. 1942): 279, 378; Canada, House of Commons Debates (9 June 1941), 3679–80; LG (May 1942): 517; Douglas Cruickshank, ‘The Dominion Wartime Labour Policy and the Politics of Unionism,

370

41.

42. 43.

44.

45.

46. 47. 48.

NOTES

1939–45: The Experience of Labour’s Eastern Canadian Shipyard Unions’, MA thesis (Dalhousie University, 1984), 80; IC (May 1942): 130; LG (Aug. 1943): 1122–3, 1126; (Sept. 1943): 1243, 1300; (Oct. 1943): 1360; (Nov. 1943): 1520, 1522, 1524; (Dec. 1943): 1690; (July 1945): 1011; Royal Commission to Inquire into the Events which occurred at Arvida, Quebec, Report (Ottawa, Oct. 1941), 9; Cohen, Collective Bargaining in Canada, 46–7. NAC, MG 30, A 94, vol. 24, file 2856, Report of the Committee on Measures for Dealing with Alleged Discrimination for Union Activity; NAC, MG 28, I 103, vol. 4, Fed. Govt. Corresp., 1939–41, Pat Conroy to A.R. Mosher, 19 April 1941; NAC, RG 27, vol. 3199, file 165, J.P. Stirrett, General Manager of the CMA, to the Chairman and Members of the NLSC, 19 Apr. 1941. Millar, ‘Shapes of Power’, 23; PC 4844 amending section 5 of PC 4020. PC 7068, issued 10 Sept. 1941, empowered the Minister of Labour to issue final and binding orders where he deemed it necessary to give effect to the IDIC recommendations, and PC 4175 provided that any person who refused or failed to comply with an order of the minister made under PC 4040 was liable on summary conviction to a fine not exceeding $500 for every day that the failure to comply continued. Millar, ‘Shapes of Power’, 187, 339; Jeremy Webber, ‘The Malaise of Compulsory Conciliation: Strike Prevention in Canada During World War II’, L/LT 15 (1985): 64; Grube, ‘Labor Conciliation and the Government’, 142–3; NAC, RG 35, 7, vol. 21, file 18, Historical Account of the Legislation Administered by Industrial Relations Branch, 59. Martin, ‘A Study of Legislation’, 336, 352–4; NAC, RG 27, vol. 638, file 210, A.J. Hills, Chairman of the NLSC, to Oliver North, Assistant Commercial Attaché, American Legation, 19 July 1941. NAC, RG 27, vol. 144, file 611.04:21, Industrial Disputes Commission Reports, Case Nos. 1, 2, 25, 31; Morton, Working People, 179; Ross Murray, ‘The End of the Canada Packers Myth’, Canadian Forum (Feb. 1942): 334–5; G.M.A. Grube, ‘Company Unions and the Government’, Canadian Forum (Oct. 1941): 213–14. Royal Commission to Inquire into the Events which occurred at Arvida, Quebec, Report, 9. NAC, MG 26, J 1, vol. 306, C.D. Howe to W.L.M. King, 26 July 1941. NAC, MG 28, I 103, vol. 4, Federal Government Correspondence, 1939–41, Norman S. Dowd to King, 14 Aug. 1941; Royal Commission to Inquire into the Events which occurred at Arvida, Quebec, Report, 9; LG (Nov. 1943): 1520, 1522, 1524; (Dec. 1943): 1690; (July 1945): 1011; Jodoin and Cutler v. The King (1945), 85 C.C.C. 56.

N OT E S

371

49. Saywell, ‘Just Call Me Mitch’, 468–9; Pamela Sugiman, Labour’s Dilemma: The Gender Politics of Auto Workers in Canada, 1937–1979 (Toronto, 1994), 32–4; NAC, MG 26, J 4, vol. 361, file 3854, Memorandum from W.J. Turnbull, Principal Secretary, to King, 27 Sept. 1941; NAC, RG 27, vol. 254, file 721.02:1, Memorandum for McLarty, 12 Nov. 1941; Coates, ‘Organized Labour and Politics’, 86; LG (Oct. 1941): 1209. 50. Quoted in G.M.A. Grube, ‘Labor Law by Order in Council’, Canadian Forum (Oct. 1941): 239; NAC, MG 28, I 103, Federal Government Correspondence, 1939–41, Statement released by A.R. Mosher; NAC, MG 28, I 103, vol. 4, Federal Government Correspondence, 1939–41, Pat Conroy to A.R. Mosher, 19 Sept. 1941. 51. Frank Robert Anton, The Role of Government in the Settlement of Industrial Disputes in Canada (Don Mills, Ont., 1962), 179; NAC, RG 35, 7, vol. 21, file 18, Historical Account, 31; Grube, ‘Labor Law by Order in Council’, 237–40. 52. MacDowell, ‘Remember Kirkland Lake’, 80–212; Abella, Communism, Nationalism and Canadian Labour, 88–9; Millar, ‘Shapes of Power’, 17; Whitaker, ‘Official Repression’, 154. 53. NAC, MG 28, I 103, 84/381, CCL Executive Council meeting, 22 Oct. 1941; Cohen, Collective Bargaining in Canada, 54–5; MacDowell, ‘Remember Kirkland Lake’, 109–11. 54. MacDowell, ‘Remember Kirkland Lake’, 111–18; Webber, ‘The Malaise of Compulsory Conciliation’, 144–7. 55. MacDowell, ‘Remember Kirkland Lake’, 181. 56. Ginden, The Canadian Auto Workers, 76–80; Millar, ‘Shapes of Power’, 27. 57. MacDowell, ‘Remember Kirkland Lake’, 110; Abella, Communism, Nationalism and Canadian Labour, 90; NAC, MG 26, J 1, vol. 310, McLarty to M.J. Coldwell, 4 Dec. 1941. 58. Fudge, ‘Voluntarism and Compulsion’, 192–5. 59. Logan, State Intervention and Assistance in Collective Bargaining: The Canadian Experience, 1943–1954 (Toronto, 1956), 13. 60. Logan, Trade Unions in Canada, 546–7; NAC, MG 28, I 103, 84/381, CCL minutes, 28 Feb. 1942; Martin, ‘A Study of Legislation’, 348; MacDowell, ‘Remember Kirkland Lake’, 228. 61. LG (Feb. 1942): 178–9; (Mar. 1942): 292–3. 62. NAC, MG 28, I 103, vol. 9, TLC, 1941–8, Moore to Mosher, 19 Dec. 1941; MG 28, I 103, vol. 7, file; W.L.M. King, 1942–4, Bengough and Mosher to King, 24 Nov. 1942. 63. Ivan Avakumovic, The Communist Party in Canada (Toronto, 1975), 157; Abella, Nationalism, Communism and Canadian Labour, 73–5,

372

64.

65.

66. 67. 68.

69.

NOTES

80–5, 172–6; Laurel Sefton MacDowell, ‘The Career of a Trade Union Leader: C.H. Millard, 1937–46’, Relations Industrielles 43, 30 (1988): 614–19; NAC, MG 28, I 103, vol. 3, CCF, Pat Conroy to C.H. Millard, 20 Jan. 1942; Stanton, Never Say Die!, 188–94; Ron Crawley, ‘What Kind of Unionism: Struggles Among the Sydney Steelworkers in the SWOC Years, 1936–1942’, L/LT 39 (Spring 1996): 99–124. Gad Horowitz, Canadian Labour in Politics (Toronto, 1968), 70; J.L. Granatstein, The Politics of Survival: The Conservative Party of Canada, 1939–45 (Toronto, 1967), 133, 212. Fudge, ‘Voluntarism and Compulsion’, 203–5; Bora Laskin, ‘Recent Labour Legislation in Canada’, Canadian Bar Review 22 (1944): 782; Smith, Cold Warrior, 127–8. NAC, MG 28, I 230, accession no. 83/138, Minutes of the Industrial Relations Committee, 10 Sept. 1941. Millar, ‘Shapes of Power’, 69–70. NAC, RG 27, vol. 253, file 719:7–4, vol. 1, A Plan for the Co-operation of the Dominion and Provincial Governments in the Development and Administration of War Labour Policy, 7–8. Pat Conroy, ‘Functions and Responsibilities of Labour Unions’, Canadian Unionist (Sept. 1944).

Chapter 10 1. J.W. Pickersgill, The Mackenzie King Record, vol. 1 (Toronto, 1960), 569, 571. 2. J.L Granatstein, Canada’s War (Toronto, 1975), 250. 3. Reginald Whitaker, The Government Party (Toronto, 1977), 147; Granatstein, Canada’s War, 274. 4. Millar, ‘Shapes of Power’, n. 123; Whitaker, The Government Party, 138. 5. Bora Laskin, ‘Industrial Relations and Social Security’, Public Affairs (Fall 1944): 48. 6. Craig Heron, The Canadian Labour Movement (Toronto, 1989), 84. 7. Laurel S. MacDowell, ‘The 1943 Steel Strike Against Wartime Wage Controls’, L/LT 1 (1982): 65–85; Coates, ‘Organized Labour and Politics in Canada’, 114–24; Peter Warrian, ‘Labour is not a Commodity: A Study of the Rights of Labour in the Postwar Economy’, Ph.D. thesis (University of Waterloo, 1981), 89–98; Pickersgill, The Mackenzie King Record, vol. 1, 440–2, 466–75; Fudge, ‘Voluntarism and Compulsion’, 225–31. 8. NAC, MG 28, I 103, box 2, CIO, 1943, A.R. Mosher to Pat Conroy, 6 Feb. 1943; MacDowell, ‘The 1943 Steel Strike’, 80, 85. 9. Jerry Lembcke and William M. Tattam, One Union in Wood (Madeira Park, BC, 1984), 104; Stanton, Never Say Die!, 61–7; Seager, ‘Pro-

N OT E S

10.

11.

12. 13. 14. 15.

16. 17.

18. 19.

20.

373

letariat in Wild Rose Country’, 477–83; Warrian, ‘Labour Is Not a Commodity’, 99, 101; Millar, ‘Shapes of Power’, 138. Aaron McCrorie, ‘PC 1003: Labour, Capital and the State’, in Cy Gonick, Paul Phillips, and Jesse Vorst, eds, Labour Gains, Labour Pains: 50 Years of PC 1003 (Halifax, 1995), 28–30; Canadian Wartime Information Board, Summary of the Proceedings of the National War Labour Board, Canada Labour Library, 14; Proceedings of the National War Labour Board Public Inquiry into Labour Relations and Wage Conditions (Ottawa, 1943), 13 vols (hereafter NWLB Proceedings), TLC brief, 54–84, CCL brief, 119–35, Canadian and Catholic Federation of Labour brief, 144–52, CMA brief, 160, CCC brief, 181–95. NAC, RG 19, 4664, J.F. Towers, Governor of the Bank of Canada, to W.C. Clark, Deputy Minister of Finance and Chairman of the EAC, 13 June 1943; Report of the Majority of the National War Labour Board and Report of the Minority of the National War Labour Board, printed as a supplement to the LG (Feb. 1944) (hereafter the NWLB Majority Report and the NWLB Minority Report). NWLB Majority Report, 7–10. NWLB Majority Report, 4; NWLB Minority Report, 17, 15. NWLB Minority Report, 20; NWLB Majority Report, 6. Fudge, ‘Voluntarism and Compulsion’, 261–77. NAC, RG 27, 621, 41, Memorandum re Labour Relations Order by V.C. MacDonald and M.M. Maclean, 7 Dec. 1943; Fudge, ‘Voluntarism and Compulsion’, 263–77. NAC, MG 28, I 103, 4, CCF—1944, 18 Feb. 1944. F.A. Brewin, ‘The Ontario Collective Bargaining Act’, Canadian Forum (Mar. 1943): 344–5; Millar, ‘Shapes of Power’, 74–93; MacDowell, ‘The Formation of the Canadian Industrial Relations System’, 190–2; Ontario, Proceedings of Select Committee Re Bargaining between Employers and Employees (1943), Legislative Library, Toronto; Report of the Commission on Employer-Employee Relations, Bill No. 51, 1943; IC (Sept. 1943): 90–6; Royal Commission, Report of the Commission Appointed to Inquire into Certain Disputes in the Mills of Price Brothers and Lake St John Power and Paper, Department of Labour, Industrial Relations Branch, 1943; Gray, ‘Woodworkers and Legitimacy’, 115–19; Geddes, ‘Alberta Labour Legislation’, 80–4. Gray, ‘Woodworkers and Legitimacy’, 92–3, 115–20. IC (Aug. 1943): 90; (Sept. 1943): 90–6; Geddes, ‘Alberta Labour Legislation’, 83–5; A.W.R. Carrothers, Collective Bargaining Law in Canada (Toronto, 1965), 58–9. NAC, MG 28, I 103, vol. 199, file 199–20, A.R. Mosher and Pat Conroy to the Ontario Minister of Labour; Millar, ‘Shapes of Power,’ 74, 84, 91–2, 133; G.M.A. Grube, ‘Legislating for Labor’, Canadian Forum (May

374

21.

22. 23.

24. 25.

26.

27.

28.

NOTES

1945): 30–1; Coates, ‘Organized Labour and Politics in Canada’,130–4; OA, RG 3, Hepburn Papers, box 416, TLC to the Honourable G.D. Conant, Prime Minister of Ontario; NAC, MG 28, I 103, vol. 199, A.R. Mosher and Pat Conroy to the Honourable J.C. Nixon, Premier of Ontario, 20 July 1943; Bora Laskin, ‘Collective Bargaining in Ontario: A New Legislative Approach’, Canadian Bar Review 21 (1943): 684–706. The Trade Union Act, S.S. 1944 (2nd sess.), c. 69; NAC, RG 27, 83–84/206, box 4, 7–2–3, A. MacNamara, Federal Deputy Minister of Labour, to Mr Justice G.B. O’Connor, Chair of NWLRB, 20 Oct. 1944; Carrothers, Collective Bargaining Law in Canada, 55–6, 134; Labour Relations Act, S.Q. 1944, c. 30; Public Services Employees Disputes Act, S.Q. 1944, c. 31; B.S. Keirstead, ‘Industrial Relations and Social Security’, Public Affairs (Winter 1945): 119. James B. Atleson, Labor and the Wartime State: Labor Relations and Law During World War II (Urbana, Ill., 1998). Neil Layton Fergusson, ‘Collective Bargaining and Order in Council P.C. 1003’, M.C.L. thesis (McGill University, 1947), 104–6; Carrothers, Collective Bargaining Law in Canada, 55; Edward E. Herman, Determination of the Appropriate Bargaining Unit by Labour Relations Boards in Canada (Ottawa, 1966), 23; Geddes, ‘Alberta Labour Legislation’, 75–80. H.D. Woods, Labour Policy in Canada, 2nd edn (Toronto, 1973), 93. NAC, RG 27, acc. 83–84/206, box 4, file 7–2–3:1, Discussion of the amendment to PC 1003 proposed by Harry Taylor, CMA representative on the NWLRB; Millar, ‘Shapes of Power’, 133. Fudge, ‘Voluntarism and Compulsion’, 290–3; C.H. Curtis, The Development and Enforcement of the Collective Agreement (Kingston, Ont., 1966), 54. LG (Mar. 1944): 367; Martin, ‘A Study of Legislation Designed to Foster Industrial Peace’, 389; LG (Mar. 1944): 364–5, 369–70; NAC, MG 28, III 62, Canadian Chamber of Congress, Meeting of the Executive SubCommittee on Labour Policy, 9 Feb. 1944, 10, and D.L. Morrell, Secretary of the Sub-Committee on Labour, to H. Mitchell, Minister of Labour; LG (July 1944): 927–9; Gray, ‘Woodworkers and Legitimacy’, 136. NAC, RG 27, 254, 719:7–4, 3, Statement by J.L. Cohen, KC, Toronto, on the Wartime Labour Relations Regulations, PC 1003, 26 Feb. 1944; NAC, MG 30, A 94, 36, 3065, J.L. Cohen to David Lewis, 24 Feb. 1944; Amendment of PC 1003, compiled by Bernard Wilson, on file at the Labour Canada Library, Hull, Quebec; NAC, RG 27, 83–83/206, 1, 7–2–1–1, part 2, Summary of Amendments to PC 1003.

N OT E S

375

29. Urquhart, ed., Historical Statistics of Canada, 2nd edn, Series E190–7; Ginden, The Canadian Auto Workers, 98. 30. NAC, RG 27, 83–84/206, 6, 7–2–8–2, part 3, Bengough to MacNamara, 1 Aug. 1945. 31. United Electrical Radio and Machine Workers of America, and Packard Electric Co. Ltd., CLLC, 10,415, 12 Jan. 1945, 21; Glass Blowers’ Association and Dominion Glass Co., et al. in John A. Willis, The Ontario Labour Court, 1943–1944 (Kingston, Ont., 1979), 154; Millar, ‘Shapes of Power’, 130–1, 176, 189–200; Fudge, ‘Voluntarism and Compulson’, 299, 316–18; Fergusson, ‘Collective Bargaining and Order in Council PC 1003’, 143–4. 32. NAC, RG 27, 83–84/206,6, 7–8–2, part 1, Resolution passed at the 60th annual convention of the TLC, Toronto, Oct. 1944; Bernard Wilson’s summary of amendments requested to PC 1003, NAC, RG 27, 83–83/206, 1, 7–2–1–1, part 2, 3; NAC, MG 28, I 230, 83/138, H.W. MacDonnell, Secretary, Industrial Relations Dept, CMA, to Mitchell, 10 Aug. 1945, 4; NAC, MG 28, I 103, 195, H.J. Padget, Representative of the USW, to Norman S. Dowd, Executive Secretary, CCL, 11 Jan. 1945, 2. 33. A.C. Thompson, ‘Collective Labour Agreements’, Canadian Bar Review 24, 3 (Mar. 1946): 175–6; Fergusson, ‘Collective Bargaining and Order in Council PC 1003’, 182–5; NAC, RG 27, 83–84/206, 3, 7–2–2–15, part 1, Jacob Finkelman, Chairman, OLRB, to M.M. Maclean, NWLRB, 15 Sept. 1944; NAC, RG 27, 83–84/206, 4, 7–2–3–7, M.M. Maclean to H.S. Johnston, Manitoba Department of Labour, 11 Dec. 1944, 1–2; NAC, MG 28, I 230, 83/138, Minutes of the Industrial Relations Committee, 20 Nov. 1944, 3. 34. A.C. Thompson, ‘Labour Agreements’, IC (Nov. 1945): 85–7; David Matheson, ‘The Canadian Working Class and Industrial Legality, 1939– 1949’, MA thesis (Queen’s University, 1989), 131–3, 139–44, 148–51; Warrian, ‘Labour Is Not a Commodity’, 144–52. 35. NAC, RG 27, acc. 83–84/206, box, 7–8–2, part 1, Resolution passed at the 60th annual convention of the TLC, Oct. 1944; NAC, MG 28, I 103, 195, H.J. Padget, Representative of the United Steelworkers, to Norman S. Dowd, Executive Secretary of the CCL, 11 Jan. 1945, 3–4. 36. NAC, RG 27, 3540, 3–26–51–1, Allan G. MacLean, National Director of the National Liberal Foundation, to H. Mitchell, 30 Dec. 1944; NAC, RG 27, 3540, 3–26–51, 5 Jan. 1945, Paul Martin to Arthur MacNamara; NAC, RG 27, 3540, 3–26–51–1, Memorandum from A.H. Brown to MacLean, 8 Jan. 1945. 37. Ginden, The Canadian Auto Workers, 98; Jamieson, Times of Trouble, 297–8; Cruikshank and Kealey, ‘Strikes in Canada’, 120. 38. Atleson, Labor and the Wartime State, 111; Recommendations of the Boards of Conciliation on Union Security, LG (Feb. 1945): 138.

376

NOTES

39. Fudge, ‘Voluntarism and Compulsion’, 309–10. 40. NAC, RG 27, 83–84/206, 6, 7–8–2, part 1, TLC Convention, Oct. 1944; NAC, RG 27, 83–84/206, 1, 7–2–1, part 1, proposed amendments to Wartime Labour Relations Regulations, adopted by the Executive Council of the CCL, 23 Mar. 1945, 2. 41. NAC, MG 28, I 230, 83/138, H.W. MacDonnell to H. Mitchell, Wartime Labour Relations Regulations PC 1003, 10 Aug. 1945, 2–4; Jay White, ‘Pulling Teeth: Striking for the Check-off in the Halifax Shipyards, 1944’, in Earle, ed., Workers and the State in Twentieth Century Nova Scotia, 144–68; Trade Union Act, S.S. 1944 (2nd sess.), c. 69, ss. 23, 25; IC (Dec. 1944): 134; (Nov. 1945): 87; Paul Graham Knox, ‘The Passage of Bill 39: Reform and Repression in British Columbia’s Labour Party’, MA thesis (University of British Columbia, 1974), 61–2. 42. NAC, RG 27, 83–84/206, 1, 7–2–1, part 1, O’Connor to Mitchell, Re: ‘Union Shop’, 23 Aug. 1944; NAC, RG 27, 83–84/206, 6, 7–2–8–2, part 2, O’Connor to MacNamara, 7 Apr. 1945; NAC, RG 27, 83–84/206, 3, 7–2–2–1, part 2, Margaret Mackintosh, Chief, Legislation Branch, to M.M. Maclean, 27 Nov. 1945. 43. Recommendations of the Boards of Conciliation on Union Security, LG (Feb. 1945): 138; Department of Industrial Relations, Queen’s University, Union Security Plans: Maintenance of Membership and the Checkoff, Bulletin No. 10 (Kingston, 1945), 22–34, 41–4; Atleson, Labor and the Wartime State, 111. 44. Millar, ‘Shapes of Power’, 249–63; David Moulton, ‘Ford Windsor 1945’, in Abella, ed., On Strike, 129–61; George Burt, ‘The UWA and the Ford Windsor Strike 1945’, in Gloria Montenero, ed., We Stood Together (Toronto, 1979), 91–111; Warrian, ‘Labour Is Not a Commodity’, 175–85; Russell, Back to Work?, 215–22; Ginden, The Canadian Auto Workers, 98–103; Abella, Nationalism, Communism and Canadian Labour, 142–8; Smith, Cold Warrior, 154–7; Charles Lipton, The Trade Union Movement of Canada, 1827–1959 (Toronto, 1967), 266–71; LG (Oct. 1945): 1477–80, 1579; (Dec. 1945): 1868–70. 45. Ford Motor Co. of Canada Ltd. and International United Automobile et al., 46 CLLC, 18,001, 29 Jan. 1946, 159, 160, 163, 164. 46. NAC, RG 27, 3520, 3–26–10–1, part 1, H. Mitchell to R.W. Gladstone, MP, Aug. 1946; White, ‘Striking at the Halifax Shipyards’, 169. 47. Harold J. Clawson, ‘The Rand Formula: Subsidiary and Quasi-Legal Aspects’, Canadian Bar Review 24 (1946): 882. 48. Clawson, ‘The Rand Formula’, 83–4. 49. Warrian, ‘Labour Is Not a Commodity’, 185–9; Smith, Cold Warrior, 158. 50. Peter Stuart McInnis, ‘Harnessing Confrontation: The Growth and Consolidation of Industrial Legality in Canada, 1943–1950’, Ph.D. thesis

N OT E S

51.

52. 53.

54.

55.

56. 57.

58.

59.

377

(Queen’s University, 1996), ch. 4; Jamieson, Times of Trouble, 298; Lembcke and Tattam, One Union in Wood, 113–14; Phillips, No Power Greater, 148–9; Knox, ‘The Passage of Bill 39’, 94–8; William Kaplan, Everything that Floats (Toronto, 1987), 41–8; Logan, Trade Unions in Canada, 228, 291–3; Rick Salutin, Kent Rowley: The Organizer (Toronto, 1980), 44–54; Madeleine Parent, ‘Valleyfield’s Textile Workers, 1946’, in Montenero, ed., We Stood Together, 113–36. Dan England, Robert England, and Del Stewart, ‘The 1946 Rubber Workers’ Strike’, in Copp, ed., Industrial Unionism in Kitchener, 1937–47, 77–9; Logan, Trade Unions in Canada, 269; Terry Copp, The I.U.E. in Canada: A History (Elora, Ont., 1980), 9–11; Smith, Cold Warrior, 135–8; Wayne Roberts, Organizing Westinghouse: Alf Ready’s Story (Hamilton, Ont., 1979); Millar, ‘Shapes of Power’, 295. USW Local 100 v. Steel Company of Canada, [1944] O.R. 299. Warrian, ‘Labour Is Not a Commodity’, 190–2; Robert Storey, ‘Workers, Unions and Steel: The Shaping of the Hamilton Working Class’, Ph.D. thesis (University of Toronto, 1981), 370–403; Bill Freeman, 1005: Political Life in a Union Local (Toronto, 1982), 44–69; William Kilbourn, The Elements Combined: A History of the Steel Company of Canada (Toronto, 1960), 182–206; MacEwan, Miners and Steelworkers, 259–65; Smith, Cold Warrior, 165–6; Wayne Roberts, ed., Baptism of a Union: Stelco Strike of 1946 (Hamilton, 1981); David William Tudor Matheson, ‘The Canadian Working Class and Industrial Legality’, MA thesis (Queen’s University, 1989), 162–3; Logan, Trade Unions in Canada, 266; NAC, RG 2, Series 16, Cabinet Committee, 10, 15, 17 July 1994; Minutes of Proceedings and Evidence of the Standing Committee on Industrial Relations, House of Commons, Session 1946. Canada, Parliament, Session 1946, House of Commons Standing Committee on Industrial Relations, Minutes of the Proceedings of the Standing Committee on Industrial Relations, 4, 15, 42, 581, iii–iv. Storey, ‘Workers, Unions and Steel’, 393; NAC, MG I 230, vol. 118, A.C. Thompson, Manager, Industrial Relations Department, to W.S.A. Daley, 7 Jan. 194; Millar, ‘Shapes of Power’, 231. Jamieson, Times of Trouble, 297; Morton, Working People, 190. Don Taylor and Bradley Dow, The Rise of Industrial Unionism in Canada —A History of the CIO (Kingston, Ont., 1988), 35; Warrian, ‘Labour Is Not a Commodity’, 237–46. England et al., ‘The 1946 Rubber Workers’ Strike’, 92; Jamieson, Times of Trouble, 301–2, 304, 308–17; Ginden, The Canadian Auto Workers, 112; Warrian, ‘Labour Is Not a Commodity’, 185–9; Morton, Working People, 196. Atleson, Labor and the Wartime State, 121.

378

NOTES

60. Fergusson, ‘Collective Bargaining and Order in Council PC 1003’, 199– 209; Logan, State Intervention, 62; Knox, ‘The Passage of Bill 39’, 143–50. 61. Logan, State Intervention, 38–41. 62. NAC, RG 27, 83–84/206, box 1, 7–2–1–1, part 2, amendments pertaining to PC 1003, compiled by Bernard Wilson, Department of Labour; Carrothers, Collective Bargaining Law in Canada, 61–3; IC (Oct. 1945): 95–6; McInnis, ‘Harnessing Confrontation’, 312, 320–7. 63. 11–12 Geo. VI, c. 54; Carrothers, Collective Bargaining Law in Canada, 56, 64; S.S. 1946, c. 98; Alvin Finkel, ‘The Cold War, Alberta Labour, and the Social Credit Regime’, L/LT 21 (1988): 134–6; A.C. Chrysler, Labour Relations and Precedents in Canada (Toronto, 1949), 64; Geddes, ‘Alberta Labour Legislation’, 98; S.A. 1947, c. 8; S.A. 1948, c. 76; McInnis, ‘Harnessing Confrontation’, 348. 64. Gray, ‘Woodworkers and Legitimacy’, 199. 65. Knox, ‘The Passage of Bill 39’, 120–33, 158–60; Gray, ‘Woodworkers and Legitimacy’, 265–71, 336; Carrothers, Collective Bargaining Law in Canada, 64. 66. Carrothers, Collective Bargaining Law in Canada, 50–1, 57, 59. 67. Knox, ‘The Passage of Bill 39’, 101–3; Phillips, No Power Greater, 145–6; Southam Co. v. Gouthro, [1948] 3 D.L.R. 178 (B.C.S.C.); A.W.R. Carrothers, The Labour Injunction in British Columbia (Toronto, 1956), 108–10, 60; R. v. Doherty and Stewart, [1946] 4 D.L.R. 686 (Ont.); R. v. Carrothers (1946), 86 C.C.C. 247 (Ont.). 68. E. Jean Nisbet, ‘ “Free Enterprise at Its Best”: The State, National Sea, and the Defeat of the Nova Scotia Fishermen, 1946–47’, in Earle, ed., Workers and the State in Twentieth Century Nova Scotia, 71–90; Carrothers, Collective Bargaining Law in Canada, 57–8. 69. Whitaker, The Government Party, 142–3. 70. Alvin Finkel, ‘Trade Unions and the Welfare State in Canada,1945–90’, in Cy Gonick, Paul Phillips, and Jesse Vorst, eds, Labour Gains, Labour Pains: 50 Years of PC 1003 (Halifax, 1995), 63–4; Abella, Nationalism, Communism and Canadian Labour, 78–80, 92–110, 120–38, 146–67; Palmer, Working-Class Experience, 290–8; NAC, RG 27, 836, I–28–3, A.A. MacNamara to H. Mitchell, 24 March 1948; ibid., M.M. MacLean to A. MacNamara, 31 Mar. 1948. 71. Finkel, ‘Trade Unions and the Welfare State’, 62–3; Susan Prentice, ‘Workers, Mothers, Reds: Toronto’s Postwar Daycare Fight’, Studies in Political Economy 30 (1989): 115–41; Julie Guard, ‘Womanly Innocence and Manly Self-Respect: Gendered Challenges to Labour’s Postwar Compromise’, in Gonick et al., eds, Labour Gains, 119–37; Ruth Roach Pierson, ‘They’re Still Women After All’: The Second World War

N OT E S

379

and Canadian Womanhood (Toronto, 1986); Ann Porter, ‘Women and Income Security in the Post-war Period: The Case of Unemployment Insurance’, L/LT 36 (1993): 111–44; Anne Forrest, ‘Securing the Male Breadwinner: A Feminist Interpretation of PC 1003’, in Gonick et al., eds, Labour Gains, Labour Pains, 139–62; Jane Ursel, Private Lives, Public Policy: 100 Years of State Intervention in the Family (Toronto, 1992), 179–227; McInnis, ‘Harnessing Confrontation’, 255–68. 72. Matheson, ‘The Canadian Working Class and Industrial Legality’, 167; Leo Panitch and Donald Swartz, ‘Coercion and Consent in Canadian Industrial Relations’, L/LT 13 (1984): 178.

Chapter 11 1. Bora Laskin, A Selection of Cases and Materials on Labour Law (Toronto, 1947), intro. (n.p.) (quote); Laskin, ‘Labor Law: 1923–1947’, Canadian Bar Review 26 (1948): 286–99. 2. David Beatty and Brian Langille, ‘Bora Laskin and Labour Law’, University of Toronto Law Journal 35 (1985): 674–727; Re Peterboro Lock Manufacturing (1953), 4 L.A.C. 1499, 1501 (quote). 3. R. v. Arthurs, Ex parte Port Arthur Shipbuilding Co., [1967] 2 O.R. 49, 70 (quote); McGavin Toastmaster Ltd. v. Ainscough (1975), 54 D.L.R. 1 (3d) (S.C.C.). 4. Re Oil, Chemical & Atomic Workers & Polymer Corp. Ltd (1959), 10 L.A.C. 51, 58 (quote); aff’d 26 D.L.R. (2d) 609 (Ont. H.C.); 28 D.L.R. (2d) 81 (Ont. C.A.); 33 D.L.R. (2d) 124 (S.C.C.). More generally, see H.W. Arthurs, ‘Developing Industrial Citizenship: A Challenge for Canada’s Second Century’, Canadian Bar Review 45 (1967): 787–830. 5. Russell, Back to Work?, 247; Leacy, ed., Historical Statistics of Canada, 2nd edn, E176; Taylor and Dow, The Rise of Industrial Unionism in Canada, 36–7; Wayne Roberts and John Bullen, ‘A Heritage of Hope and Struggle: Workers, Unions, and Politics in Canada, 1930–1982’, in Michael Cross and Gregory S. Kealey, eds, Modern Canada, 1930’s– 1980’s (Toronto, 1984), 125–6; Jamieson, Times of Trouble, 251. 6. Daniel Drache and Harry Glasbeek, The Changing Workplace: Reshaping Canada’s Industrial Relations System (Toronto, 1992), 127–48; Harry J. Glasbeek, ‘Voluntarism, Liberalism, and Grievance Arbitration: Holy Grail, Romance and Real Life’, in Geoff England, ed., Essays in Labour Relations Law (Toronto, 1986), 57–102; Larry Haiven, ‘Hegemony and the Workplace: The Role of Arbitration’, in Haiven, Stephen McBride, and John Shields, eds, Regulating Labour: The State, Neoconservatism and Industrial Relations (Toronto, 1990), 79–117; Thomas Geoghegan, Which Side Are You On? (New York, 1991), ch. 8.

380

NOTES

7. Polymer (1959), 10 L.A.C. 31 and (1959), 10 L.A.C. 51. 8. Canada, Parliament, House of Commons, Standing Committee on Industrial Relations, Minutes of the Proceedings of the Standing Committee on Industrial Relations, 1946, 767 (Pat Conroy). 9. Heron, The Canadian Labour Movement, 99–100; Palmer, WorkingClass Experience, 290–8; Desmond Morton with Terry Copp, Working People (Ottawa, 1984), 201–13. 10. Re Peterboro Lock, 1501. 11. A.W.R. Carrothers and E.E. Palmer, Report of a Study on the Labour Injunction in Ontario (Toronto, 1966); Task Force on Labour Relations, Canadian Industrial Relations Final Report (Woods Task Force) (Ottawa, 1968). 12. Hersees of Woodstock v. Goldstein (1963), 38 D.L.R. (2d) 449, 454 (Ont. C.A.). More generally, see Innis Christie, The Liability of Strikers in the Law of Tort (Kingston, 1967); Susan Tacon, Tort Liability in a Collective Bargaining Regime (Toronto, 1960). 13. Bora Laskin, ‘Certiorari to Labour Boards: The Apparent Futility of Privative Clauses’, Canadian Bar Review 30 (1952): 986–1003; Arthurs, ‘Developing Industrial Citizenship’, 823–9; Brian Etherington, ‘Arbitration, Labour Boards and the Courts in the 1980s: Romance Meets Realism’, Canadian Bar Review 68 (1989): 405–47; Etherington, ‘An Assessment of Judicial Review of Labour Law: Of Realists, Romantics and Pragmatists’, Ottawa Law Review 24 (1992): 685–732; Roger Carter, ‘The Privative Clause in Canadian Administrative Law, 1944–1985: A Doctrinal Examination’, Canadian Bar Review 64 (1986): 241–82. 14. Heron, The Canadian Labour Movement, 92; Ursel, Private Lives, Public Policy, 249–50; Jamieson, Times of Trouble, 348–9; Roy Adams and Ray Markey, ‘How the State Influences Trade Union Growth: A Comparative Analysis of Developments in Europe, North America and Australasia’, International Journal of Comparative Labour Law and Industrial Relations 13 (1997): 285–303. 15. H.C. Pentland, A Study of the Changing Social, Economic and Political Background of the Canadian System of Industrial Relations, Draft Study prepared for the Task Force on Industrial Relations (Ottawa, 1968), 170; H.D. Woods, Labour Policy in Canada, 2nd edn (Toronto, 1973), 25. 16. Ursel, Private Lives, Public Policy, 239. 17. Ann Porter, ‘Women and Income Security in the Post-war Period: The Case of Unemployment Insurance, 1945–1963’, L/LT 31 (1993): 111–44; Gail Cuthbert Brandt, ‘ “Pigeon-Holed and Forgotten”: The Work of the Subcommittee on the Post-War Problems of Women, 1943’, Social History 15 (1982): 253–9; Forrest, ‘Securing the Male Bread-

N OT E S

18. 19. 20.

21.

22.

23.

24. 25. 26.

27.

381

winner’, 139–62; Gillian Creese, Contracting Masculinity: Gender, Class, and Race in a White-Collar Union, 1944–1994 (Toronto, 1999), ch. 3. Ursel, Private Lives, Public Policy, 195. Avery, Reluctant Host, 198–218; Palmer, Working-Class Experience, 305–7; Ursel, Private Lives, Public Policy, 239, 242. Jamieson, Times of Trouble, 349; Palmer, Working-Class Experience, 298–302; Janine Brodie and Jane Jenson, Crisis, Challenge and Change (Ottawa, 1988), 268; Ursel, Private Lives, Public Policy, 245 (quote). Woods Task Force, Report; Carrothers, The Labour Injunction in British Columbia, 108–10; Royal Commission of Inquiry into Labour Disputes, Ontario (Rand) (Ottawa, 1968); H.W. Arthurs, ‘ “The Dullest Bill”: Reflections on the Labour Code of British Columbia’, University of British Columbia Law Review 9 (1974): 280–340. Judy Fudge and H.J. Glasbeek, ‘The Legacy of PC 1003’, Canadian Labour and Employment Law Journal 3 (1995): 384–5; Julie White, Women and Unions (Ottawa, 1980), 22. Gene Swimmer and Mark Thompson, eds, Public Sector Collective Bargaining in Canada (Kingston, 1995); Leo Panitch and Donald Swartz, The Assault on Trade Union Freedoms: From Consent to Coercion (Toronto, 1993). Panitch and Swartz, Assault on Trade Union Freedoms, 143; Drache and Glasbeek, The Changing Workplace. Kim Moody, Workers in a Lean World: Unions in the International Economy (London, 1997). Martha-Marie Kleinhans and Roderick A. Macdonald, ‘What is a Critical Legal Pluralism’, Canadian Journal of Law and Society 12, 2 (1997): 25–46. Linda Weiss, ‘Globalization and the Myth of the Powerless State’, New Left Review 225 (1997): 3–27; Joachim Hirsch, ‘Globalization of Capital, Nation-States and Democracy’, Studies in Political Economy 54 (1997): 39–58; Gary Teeple, Globalization and the Decline of Social Reform (Toronto, 1995). For an example of recent counterattacks, see Buzz Hargrove, ‘Ontario Teachers’ Strike’, Our Times 7, 1 (Jan.-Feb. 1998): 13; Bryan Palmer, ‘Halloween in Harrisland’, Canadian Dimension 32, 1 (Jan.-Feb. 1998): 29–32; Marcella Munro, ‘Comment on Ontario’s Days of Action and Strategic Choices for the Left in Canada’, Studies in Political Economy 53 (1997): 125–40.

Index

Acadia mines, 172 ACCL. See All-Canadian Congress of Labour Acland, F.A., 74 ACWA. See Amalgamated Clothing Workers of America Adamson, J.E., 199 AFL. See American Federation of Labor aid to civil power, 17, 44, 50, 126, 239, 290 Alberta, 40, 70, 98, 117, 123, 129–30, 140–1, 145, 158, 170–1, 173–4, 184, 189–91, 197, 201–2, 217, 219–21, 226–7, 261, 267, 271–2, 295 Alberta Block Coal Co., 145 Alberta Court of Appeal, 142 Alberta Federation of Labour, 141, 190, 201–2, 219–20 Alberta Provincial Police (APP), 130, 145, 170 Algoma (employer), 290 Alien Labour Act, 34, 36–9, 63, 65, 87, 144 All-Canadian Congress of Labour (ACCL), 139, 188, 194–6, 220 ALU. See American Labor Union Aluminum Company plant (Arvida, Que.), 251–2 Amalgamated Association of Iron, Steel and Tin Workers, 126–7 Amalgamated Association of Street and Electric Railway Employees, 78 Amalgamated Clothing Workers of America (ACWA), 147, 180, 194, 240 Amalgamated Mine Workers (AMW), 93, 118, 168, 172–3, 217

Amalgamated Sheet Metal Workers International, 29 American Federation of Labor (AFL), 35, 46, 49, 194, 196, 217, 226, 249 American Labor Union (ALU), 45–6, 48, 69 Amherst, NS, 117 Andrews, A.J., 109–16 Anyox mine (British Columbia), 171–2 APP. See Alberta Provincial Police arbitration, 3, 18, 35–6, 40–3, 46, 57, 78, 81–2, 99, 102, 118, 141, 147–8, 150, 183, 185, 210, 220–4, 234–6, 246, 255, 269–71, 273, 275–6, 278–80, 283–4, 294, 300, 302–4, 314 arbitration council (Ontario), 37 Arcand, J.C., 175–6, 183–6 Arcand Act, 187, 189 A.R. Kaufman Rubber Co., 209–20 Armstrong, George, 123 Armstrong, W.H., 93–4, 98, 117–18 Arvida, Que., 251–2 Australia, 185 Automotive Trim Company, 278 Avon Hosiery Company, 132 Aylesworth, J.B., 306–7 Bagshaw, F.B., 162 Bainbridge, Isaac, 91 Barrett, Silbey, 231 Barron, Judge, 64 Bassel’s Lunch (Toronto), 205–6 Beet Workers’ International Union (BWIU), 219 Belgium, 185 Bell, Adam, 224, 244

382

INDEX

Bengough, Percy, 258, 277 Bennett, R.B., 153, 155, 158–9, 161–3, 166–7, 171, 190–1, 193 Bercovitch, Peter, 226 Besco, 119, 125–9, 141, 146 B.F. Goodrich, 209–11 Bienfait, Sask., 168, 170 blacklists, 31, 33, 82, 140, 148, 159, 172, 183, 216, 224 Blubber Bay, BC, 222–3, 225 Boileau, Aimé, 185 Bolshevik Revolution, 89. See also Russian Revolution Borden, Robert, 64, 68–9, 88, 95–6, 98, 107, 111–12, 120–2, 161 Bowser, William John, 68–9, 75 boycotts, 31–2, 47–8, 78; consumer, 24, 28, 30, 221; hot cargo, 77; secondary, 294; trades, 28–30 Boyle, J.R., 145 Bracken, John, 172, 214, 273 breach of contract, 24, 30, 115, 205 British Columbia, 22–4, 35, 37–40, 45, 61–2, 68–70, 74–6, 80, 84–5, 94–7, 100, 123–4, 136, 140, 143–4, 148, 159–60, 165, 170–1, 174, 178, 197, 199, 217, 221–4, 226–7, 234, 244, 261, 264, 267, 271–2, 293–7, 311 British Columbia Copper Co., 60 British Columbia Court of Appeal, 143–4, 165 British Columbia Federation of Labour, 74, 76 British justice, 9, 111, 113–14, 116–17, 289 British North America Act, 140 Brockville, Ont., 63 Brodie, D.M., 231–2 Brotherhood of Locomotive Engineers, 134 Brotherhood of Railway Trainmen (BRT), 62 Browne, Robert, 149, 181 Brownlee, John E., 171, 189–90 BRT (Brotherhood of Railway Trainmen), 62 Bruce, Malcolm, 127 Brunning, E.J., 240, 242 BTC (Building Trades Council), 108 Buckingham, Que., sawmill strike, 49

383

Building Trades Council (BTC), 108 Buller, Annie, 169–70 Burde, Richard J., 178 Burns Meats (Vancouver), 221 Burt, George, 231–3, 239, 284 BWIU (Beet Workers’ International Union), 219 Cahan, C.H., 98, 100 Calgary, Alta., 84, 101, 157, 161, 220 Calgary Trades and Labour Council, 101 Cameron, J.D., 114–15 Campbell, Allan, 155 Campbell, Wallace, 255, 283 Campbellton, NB, 215 Canada, 113, 115, 138, 166, 194, 196, 205, 224, 236, 242, 252, 257, 262, 265, 298; boycotts in, 28; CIO expansion into, 212; constitutional division of powers in, 13, 136–7, 308; difficulties of organizing bushworkers in, 148; economy in, 1924–1929, 139; entry into, 96, 107, 123; first sit-down strike in, 206; ‘foreigners’ in, 8–9; and globalization, 313; industrial pluralism in, 284; industrial unionism in, 49, 280; industrial voluntarism in, 190; infiltration of radical organizations in, 98; influence of American labour developments on, 195; labour injunctions in, 20; law of picketing in, 225; Liberal vision of post-World War II, 298; major postWorld War II strikes in, 292; number of strikes in, 16, 51–2, 97, 138–9, 163, 197, 226; number of union members in, 135, 137–9, 163, 229, 303; number of working hours or days lost to strikes in, 265, 276, 280, 293; policing in, 14; post-World War II experience of unions in, 293, 296; railways in, 61; regimes of industrial legality in, 2, 13–15; reported Bolshevik conspiracy in, 100; resolution of industrial conflict in, 50; Second Industrial Revolution in, 2; state-building in, 14; steel industry in, 263; SWOC organizing efforts in, 219; third wave of unionization in, 311; workers’ collective action in, 1–2; in World War I, 89, 91–2, 97

384

INDEX

Canada Railway War Board, 99 Canadian Association of Administrators of Labour Legislation, 244 Canadian and Catholic Confederation of Labour, 267, 275 Canadian Brotherhood of Railway Employees, 101, 110 Canadian Chamber of Commerce, 187, 267–8, 275, 277, 294 Canadian Collieries, 74–5 Canadian Congress of Labour (CCL), 229, 232–3, 242–3, 245, 249, 251–4, 257–61, 266, 268, 270, 272, 275, 281, 284, 286–7, 294, 297–9, 305, 307, 310 Canadian Forum, 208 Canadian General Electric (CGE), 248 Canadian International Paper, 175–6 Canadian Labor Defence League (CLDL), 145, 149, 157 Canadian Manufacturers’ Association (CMA), 19, 21, 27, 29–30, 32–3, 47, 59–60, 69, 106–7, 121, 124, 185–8, 197, 227, 232, 234–5, 243–4, 246–9, 267, 270–1, 275, 277–8, 281–2 Canadian Northern Railway (CNR), 66, 68, 75 Canadian Observer, 208 Canadian Pacific Railway (CPR), 42, 65–7, 71, 87, 101 Canadian Seamen’s Union, 232, 264, 287–8 Canadian Victuallers and Caterers’ Union, 219–20 Canadian Western Lumber Company, 174 Cape Breton, NS, 49, 73–4, 119–20, 126–7, 129, 140 Carpenters’ Union, 188 Carpentier, Alfred, 213 Catholic Church, 147–8 CCF. See Co-operative Commonwealth Federation CCL. See Canadian Congress of Labour CFWIU (Chesterfield and Furniture Workers’ International Union), 183 CGE (Canadian General Electric), 248 Charter of Rights and Freedoms, 312 Chase, H.B., 242 Chase v. Starr, 134 Chatham, Ont., 206

Chesterfield and Furniture Workers’ International Union (CFWIU), 183 Chief Constables Association of Canada, 100 children, 2, 121, 131, 154 Chisholm, Joseph Andrew, 93, 119 Christophers, P.M., 131 Chrysler, 209, 231–2 CIO. See Congress of Industrial Organizations Citizens’ Committee of One Thousand, 108–10, 113–14, 116 civil disobedience, 154 Civil Service Commission, 99 Clark, A.H., 142 Clawson, Harold, 286 CLDL. See Canadian Labor Defence League closed shop, 24, 31–3, 47–8, 54, 59, 71–2, 77, 82, 87, 93–4, 117, 130, 146, 175, 182, 187, 197, 199, 204, 212, 217, 222–3, 282, 293. See also open shop Clute, Roger Conger, 37 CMA. See Canadian Manufacturers’ Association CNR. See Canadian Northern Railway Coal Mines Regulation Act (Nova Scotia), 146, 172–3, 217–18 Cobalt, Ont., 76–7, 80, 86–7 Cobalt Miners Union, 121 Cohen, J.L., 149, 181–2, 232, 241–2, 247, 249–51, 254, 268–9, 276 Cold War, 298 Coldwell, M.J., 253, 270 collective action, workers’, 1–3, 5–6, 11–12, 15, 17, 64, 89, 94, 102–3, 105, 124, 134, 138, 150, 174, 198, 262, 305–6, 311, 315. See also strike-related activity; strikes; trade unions collective agreements, 3, 10, 70, 124, 130, 144, 146, 181, 184–6, 197, 203–4, 213, 218–19, 234–5, 241, 260, 268, 270, 272, 274–6, 278–81, 285, 288, 291, 296, 300, 302–6, 308 collective bargaining, 3, 6, 62, 77, 79–80, 88–9, 104, 106, 108, 115–17, 122, 124–5, 134, 138, 141, 144, 148, 150–1, 154, 166–7, 179–80, 183, 185, 187–9, 191–9, 201–2, 204–28, 234–5, 237, 241, 245–6, 249–50, 253–4,

INDEX

257–62, 264–74, 276, 279–81, 284, 286, 291–303, 305–8, 310–12, 314 Collective Bargaining Act (Ontario), 272, 274, 277, 288, 296 Collective Labour Agreements Extension Act (Quebec), 202 Colonial Footwear Company, 206 Cominco, 94 Comintern (Communist International), 145, 153, 163–4, 194 Communist Party of Canada (CPC), 145, 149, 153, 157, 176, 190, 231, 233, 298 Communists and Communism, 119, 130, 143, 145–9, 154–7, 161, 164, 168, 177, 180–2, 202–3, 212–13, 217, 231–3, 243, 248, 258–9, 264, 283–4, 287–8, 295–6, 298, 300, 305, 310 Company Towns Act (British Columbia), 124 Compton, E.N., 132 Conant, Gordon, 211, 231, 234, 239, 255 conciliation, 2–3, 18, 34–54, 56–82, 85, 87–8, 92–3, 95–9, 101–3, 106–7, 115, 118, 125, 136–8, 140–2, 150, 164–5, 167–8, 173, 183–4, 197–8, 208, 210, 212, 216, 219–24, 229–30, 233, 236–8, 240–3, 246–54, 258, 260–1, 266, 268–74, 276, 278, 281–3, 286, 290–1, 293–5, 307 Conciliation Act (Canada), 36, 40, 42, 56, 59 Conciliation Act (Great Britain), 37 Confédération des Travailleurs Catholiques du Canada (CTCC), 147–8, 184, 187, 195, 202, 213 Congress of Industrial Organizations (CIO), 194–7, 202–3, 205–6, 208–9, 211–13, 216, 222, 224, 226–7, 229, 231, 234, 240, 243, 245, 249–52, 255, 261, 263, 286, 289, 291–2, 305 Conroy, Pat, 259, 272, 284, 305 conscription, 95–6 Conservative Party, 259 conspiracy law, 12, 113, 296 constables: private, 87; railway, 67; special, 22, 63, 68, 73, 75–7, 79, 86, 110, 130. See also police, special consumer boycotts. See boycotts, consumer

385

contempt proceedings, 23, 30–1, 73, 115, 205–6 contract rights, 2, 12, 26, 86, 130, 133, 174, 192, 198, 206, 211, 224, 287, 306. See also freedom of contract contracts, 2, 18–19, 118. See also breach of contract; contract rights; freedom of contract Co-operative Commonwealth Federation (CCF), 159, 174, 179, 196, 207, 211, 214, 222, 224–5, 229, 231, 247, 253, 257, 259, 261–4, 270–2, 282, 297–8, 310 Coquitlam, BC, 174 Corbin, Jeanne, 176 Cornwall, Ont., 206 Coulter plant (Oshawa, Ont.), 208 courts, 119–20, 212, 228; and arbitration, 185; attitude toward women in labour disputes, 131–2; and the civil liability of trade unions, 22–4, 30, 32–3, 106–7, 134, 143–4, 296; and complaints of employer antiunion discrimination, 249; and the constitutional division of powers in Canada, 13, 136–8, 140, 167, 191, 193; and the criminal law, 18, 239; and the Industrial Conciliation and Arbitration Act (British Columbia), 294; and the Industrial Conditions Act (Manitoba), 106–7; and the ISA (Ontario), 200; and the legal status of trade unions, 21–2, 29–31, 134, 143–4; and the Male Minimum Wage Act (British Columbia), 178; mandamus powers of, 261; and the 1947–48 amendments to PC 1003, 294; and the Noranda coal miners’ strike, 172; and the NWLB, 270; and the OBU, 118; and picketing, 25–6, 133–4, 142–4, 205–6, 228, 296–7; and police authority to break up demonstrations, 149; and the Princeton coal miners’ strike, 170; promotion of responsible trade unionism by, 146; and prosecutions under the IDIA, 248; and provincial collective bargaining laws, 198, 271–2, 296–7; and the PSA, 184; and specialized labour tribunals, 306–7, 311; and union certification, 277; use of by employers, 3, 18–34,

386

INDEX

38, 41, 48, 50, 52, 73–4, 76, 79, 87, 94–5, 106–7, 125–6, 133–4, 144, 150, 178, 180, 199, 205–6, 210–11, 220, 238–9, 294, 296, 306–7, 311; and Wartime Labour Relations Regulations enforcement, 279; and the Winnipeg General Strike, 113–16; and World War II internment of trade unionists, 232–3. See also judges; magistrates Coyne, J.B., 113 CPC. See Communist Party of Canada CPR. See Canadian Pacific Railway Crawford, A.W., 188 Crerar, Thomas, 100 Criminal Code, 25, 27, 47, 54, 63, 81, 94, 109, 113, 115, 119, 132–3, 142–3, 149, 155, 157–8, 160, 165, 167, 170, 198, 224–6, 231, 235, 239–40, 296–7 criminal law and criminal proceedings, 2, 12, 17–18, 21–2, 25–8, 31–2, 34, 39, 44, 46, 48–50, 52, 54, 56, 65, 67–8, 74–7, 80, 82, 86, 94–5, 99, 102, 105, 109–16, 119–20, 125–7, 130, 133–4, 137, 142–5, 147, 149, 156–8, 163–5, 169–72, 174–6, 180–2, 189–90, 198–200, 203–4, 206–7, 210–11, 213–17, 220, 223–6, 228, 234, 238–40, 248, 256, 268, 270, 286–7, 290, 293–4, 296, 306 Croll, David, 208–9, 211 Crothers, T.W., 75, 97, 99 Crown attorneys, 239 Crowsnest Pass, 70, 72, 93, 171 CTCC. See Confédération des Travailleurs Catholiques du Canada Curtis, Smith, 23–4 Custace, Florence, 145 damages, 21–4, 28, 30–1, 33, 39, 73, 106–7, 124, 134, 144, 147, 150, 296, 304 Defence of Canada Regulations, 230–3, 239, 248, 252 Denison, Magistrate, 27 Department of Justice (Canada), 37, 39, 109, 259–60 Department of Labour (Alberta), 219 Department of Labour (British Columbia), 222–3 Department of Labour (Canada), 36,

39–41, 56, 58, 93, 96, 168, 233–6, 240, 244, 246–8, 253, 256, 260, 269–70, 282 Department of Labour (Nova Scotia), 172 Department of Labour (Ontario), 181, 188, 206, 209–10, 212 Department of Labour (Quebec), 184, 213 Department of Munitions and Supply (Canada), 230, 236, 242, 252 Department of National Defence (DND) relief camps, 158–63, 193 Department of Trade and Industry Act (Alberta), 173 Deprenzo brothers, 67–8 detectives and detective agencies, 22, 31–2, 49, 63, 68, 76, 79, 82, 86–7, 98, 115 discourses, legal, 6–9, 314 Dixon, Fred, 111, 115–16, 123 Doherty, C.J., 100, 112 Dominion Coal Company (Domco), 73–4, 120, 140 Dominion Police, 96–101 Dominion Steel and Coal Corporation, 237 Dominion Textile Company, 80, 204 Dorchester Penitentiary, 120 Dosco, 173, 218, 290 Douglas, C.H., 219 Doull, John, 173 Draper, D.C., 182 Draper, Paddy, 143, 195–6 Dressmakers Guild (Montreal), 203 Dunsmuir family, 74 Duplessis, Maurice, 177, 197, 202–4, 212–13, 271, 287, 290 Dysart, A. Allison, 201, 214, 216 (Economic Advisory Committee), 269–70 Eagleton, Terry, 8 Economic Advisory Committee (EAC), 269–70 Edmonton, Alta, 84, 130–1, 220 employer associations, 19, 21 employers, 11; and the federal government, 36–48, 50, 52–4, 56–69, 71, 75, 77–81, 87, 92–4, 97–9, 101–3, 106–7, 109, 117–18, 121–3, 125, 132, EAC

INDEX

136, 141–2, 144, 150–2, 164–5, 167, 169, 171, 175, 192, 195, 208, 221, 225–6, 229–30, 235–56, 260–1, 264, 267–70, 273–87, 289–90, 293–5, 299–301; during the Great Depression, 154, 163–75, 177–227; ideological effects of law on, 8; and the liberal state, 5–7, 10; in 1919–29, 90, 104–9, 112–13, 117–18, 121–7, 129–34, 136, 138–52; and provincial governments, 70–1, 74–6, 86–7, 95, 105–7, 112, 124–7, 129, 132, 141, 145–6, 148–9, 164–5, 169, 171–9, 181–91, 195–226, 234, 238–9, 260–1, 264, 271–4, 278, 281–3, 287, 290, 294–6, 311–12; and regimes of industrial legality, 2–3, 10, 12–13, 15, 50, 88, 195, 227, 299–301, 306–7, 311; use of the law by, 18–34, 38, 41, 48, 50, 73–4, 76–7, 79, 82, 94–5, 106–7, 125–6, 129, 133–4, 144, 150, 178, 180, 199, 205–6, 210–11, 220, 238–9, 287–8, 294, 296, 306–7, 311; and the Winnipeg General Strike, 108–9, 112–13; and workers’ collective action, 2–3, 5, 15, 17, 102; and working class divisions, 16–17, 207, 222; before World I, 2–3, 16–34, 36–50, 52–4, 56–82, 85–8, 150; during World War I, 90, 92–5, 97–9, 101–3, 118, 150–1; during World War II, 229–30, 234–56, 260–2, 264, 267–81; following World War II, 280–96, 298–307, 309–12 Engdahl, Louis J., 157 England, law of picketing in, 225 Estevan, Sask., 168–71, 173 Europe, importation of workers from, 144 Evanik, Mrs, 176 Evans, Arthur, 161–2, 170 Fair Wage Act (Manitoba), 199 Fair Wage Act (Quebec), 203–4, 213 Fair Wages Act (New Brunswick), 201 family allowances, 309 federal government: and the criminal law, 17–18, 27, 44, 109, 134, 137; labour relations activity of, 3, 13–14, 18, 34–82, 87–8, 91–103, 105–23,

387

125–30, 132–4, 136–8, 140–5, 150–2, 164–9, 171, 175–6, 192–5, 197–8, 207–8, 214–16, 221, 224–6, 229–70, 273–95, 297–301, 305, 309–13; unemployment policy of, 153–63. See also officials, federal Federman, Max, 198 Finkelman, Jacob, 277–8 Finlayson, Duncan, 126, 129 Firestone, 287 Flavelle, Joseph, 91 Flin Flon, Man., 172 Ford, 209, 255–6, 279, 283–7, 289, 293, 304 ‘foreigners’, 8–9, 67–8, 88, 110–13, 116 Forest Operations Commission Act (New Brunswick), 177 Forsey, Eugene, 270 Fort Frances, Ont., 175 Fortkin, Martin, 169 Fort William, Ont., 66–7, 79–80, 87 Fraser Mills (Coquitlam, BC), 174 freedom of association, 3–4, 107, 166, 193, 195, 197, 205, 212–14, 222, 224–6, 228, 234–5, 244, 305, 312 freedom of contract, 3, 11–12, 59, 148, 150, 180, 192, 306, 315. See also contract rights Freedom of Trade Union Association Act (FTUAA): Alberta, 219–21; Manitoba, 214; Saskatchewan, 214; TLC draft bill, 195–7, 211–12, 214, 216, 218–19, 221 free-speech fights, 82–5 Free Trade Agreement (1988), 313 FTUAA. See Freedom of Trade Union Association Act Gainers and Burns (Edmonton employer), 220 Gardiner, Jimmy, 161–2 Gardiner, Robert, 223 Garretson, A.B., 92 General Motors (GM), 208–9 Glace Bay, NS, 73, 86, 126 globalization, 313–15 Globe, 208 Globe and Mail, 240 GM (General Motors), 208–9 Godwin, Ginger, 100 Gooderham syndicate, 22

388

INDEX

Gordon, Bella, 157 Gordon, George W., 210 Gordon, Reverend C.W., 71–2 Gouzenko revelations, 298 Grand Trunk Pacific Railway, 68 Grand Trunk Railway (GTR), 26, 43, 62–4 Great Depression, 139, 153, 164, 167–8, 175, 179–80, 184, 189–91, 226, 244, 314 grievances, 269–70, 272–3, 275, 278–9, 300, 302–4 GTR. See Grand Trunk Railway Gunn, A.D., 218 Gurney Foundry, 21, 28, 47 Guthrie, Hugh, 109, 157, 165 habeas corpus, 231–2 Haldane, Viscount, 136 Halifax, NS, 74, 79, 119, 125, 200 Halifax Chronicle, 119 Hamilton, Ont., 78, 92, 158, 165, 240–1, 266, 287, 290 Harrington, Gord, 218 Hays, C.M., 62–4 Hayward, Bill, 68 Heaps, A.A., 143 Hearst, Ont., 175 Heenan, Peter, 143–5, 188, 257, 261 Henry, George, 177 Hepburn, Mitch, 188, 197, 206–11, 255, 260 Herbst, Sam, 199 Hersees of Woodstock v. Goldstein, 306 Hilton, Hugh, 289 Hipel, Norman, 210–11 Hoadley, George, 190 Hobbes Glass Co., 239 Hochelaga, Que., 80 Hogg, F.D., 231–2 Holmes Foundry, 207 Hope, J.A., 232–3 Hotel and Restaurant Employees’ Union, 206 Hours of Work Act (Alberta), 202 House of Commons (Canada), 48, 96, 107–9, 118, 123, 143–5 House of Commons Standing Committee on Industrial Relations (Canada), 289, 294, 305 House of Lords, 23, 29

Howay, F.W., 75 Howe, C.D., 230, 241–4, 246, 251–2, 260, 264, 298 Hudson Bay Mining and Smelting Co., 172 Humberstone Shoe Company, 211 Hunter, Gordon, 45–6 Hurtig’s fur business (Winnipeg), 199 (International Alliance of Theatrical/Stage Employees), 165 ICAA. See Industrial Conciliation and Arbitration Act ideology, 7–8 IDIA. See Industrial Disputes Investigation Act IDIC. See Industrial Disputes Inquiry Commission IFWU (International Fur Workers’ Union), 143, 147 ILA (International Longshoremen’s Association), 77 ILB (Industry and Labour Board) (Ontario), 201, 209 ILGWU. See International Ladies’s Garment Workers’ Union IMB (Imperial Munitions Board), 91–2 immigrants and immigration, 17, 33–5, 61–3, 65–9, 76, 85, 87–8, 94, 96, 100, 107, 147, 150, 310 Immigration Act, 87–8, 107, 109, 111–12, 123, 143, 155–7, 160 Immigration Department, 63, 68, 87 IMMSW. See International Mine, Mill and Smelter Workers’ Union Imperial Munitions Board (IBM), 91–2 Independent Labour Party, 123 Industrial Canada, 21, 27–9 industrial citizenship, 305 Industrial Conciliation and Arbitration Act (ICAA): Alberta, 220–1, 272; British Columbia, 222–4, 271–2, 294, 297 Industrial Conditions Act (Manitoba), 106–7, 112, 124 Industrial Disputes Inquiry Commission (IDIC), 247, 249–51, 254–5 Industrial Disputes Investigation Act (Canada) (IDIA), 46, 52–4, 56–62, 64, 66, 68–81, 92–3, 97–9, 101–2, 115, IATSE

INDEX

118, 123, 125, 136, 138, 140–2, 146, 150, 167–9, 173, 192–3, 197–8, 210, 214, 216, 222, 227, 230, 233–8, 243, 246–8, 250–1, 253–4, 260, 274, 278, 286 industrial legality, regimes of, 2–4, 9–15, 18, 50, 52, 81–2, 85, 88, 146, 195, 205, 226–7, 265, 280, 283, 286, 299–303, 306–7, 310–11, 313, 315 Industrial Peace Act (Nova Scotia) (IPA), 140–1 industrial pluralism, 3–4, 14, 228, 264, 280, 283–4, 299–300, 302–14 Industrial Relations and Disputes Investigation Act (Canada), 295 industrial relations experts. See labour relations experts Industrial Standards Act (ISA) schemes, 193, 197–8, 200–1, 204, 227; Alberta, 190, 201–2, 219; Manitoba, 199; New Brunswick, 201; Nova Scotia, 200; Ontario, 188–9, 200–1 Industrial Union of Needle Trades Workers (IUNTW), 180–3, 202 industrial voluntarism, 3–4, 14, 105–6, 134, 138, 144, 148, 150–2, 154, 190–1, 193, 199, 205, 217, 225, 246, 249–50, 256–7, 260, 264, 280, 299, 301, 306, 314 Industrial Workers of the World (Wobblies) (IWW), 49, 68–9, 82–5, 88, 96–7, 100–1, 148, 175 Industry and Humanity (Mackenzie King), 264 Industry and Labour Board (Ontario) (ILB), 201, 209 injunctions, 3, 18–26, 28–32, 38, 48–50, 52, 73, 76, 94, 106–7, 118, 125, 132–4, 143, 145–7, 150, 165, 181, 198–9, 205, 210, 214, 221, 238–9, 296–7, 306, 311 Inquiries Act (Canada), 247 Institute on Economics and Politics, 192 International Alliance of Theatrical/ Stage Employees (IATSE), 165 International Association of Machinists, 92, 104 International Furriers’ Union, 199 International Fur Workers’ Union (IFWU), 143, 147

389

International Labour Organization, 107, 166–7 International Ladies’ Garment Workers’ Union (ILGWU), 144, 147, 180–2, 188, 194, 199, 202–3 International Longshoremen’s Association (ILA), 77 International Mine, Mill and Smelter Workers’ Union (IMMSW; Mine-Mill), 94, 121, 209, 224, 253–4, 256, 259. See also Western Federation of Miners International Moulders Union, 21 International Nickel Company, 256 International Typographical Union, 292, 296 International Union of Aluminum Workers, 252 International Woodworkers of America (IWA), 222, 271 internment of trade unionists, 232–3, 248, 264 Inverness Railway Company, 73–4 IPA (Industrial Peace Act) (Nova Scotia), 140–1 Iron Moulders Union, 26 Iroquois Falls, Ont., 175 Irvine, William, 128–9 ISA. See Industrial Standards Act (ISA) schemes Isley, J.L., 241 IUNTW (Industrial Union of Needle Trades Workers), 180–3, 202 Ivens, William, 115, 123 IWA (International Woodworkers of America), 222, 271 IWW. See Industrial Workers of the World Jackson, C.S., 242, 248 See Judicial Committee of the Privy Council judges, 30–2, 60–1, 75–6, 81, 85, 105, 136–8, 146, 152, 176, 294; bias and alleged bias of, 26–7, 32, 126, 128–9, 142–3, 170, 198, 223; as conciliation board members, 58; and enforcement of minimum employment standards, 202; and ‘foreigners’, 9, 67–8; and industrial pluralism, 306, 314; lower court, 26; and picketing, 21, 25–6, 28, 132–4, 142–3, 165–6, 205–6, 307;

JCPC.

390

INDEX

and pro-employer English precedents, 18–19, 150; and unemployment-related dissent, 157–8. See also courts; magistrates Judicature Act (Ontario), 238–9 Judicial Committee of the Privy Council (JCPC), 30, 123, 136, 138, 140, 167 juries, 26–7, 30, 32–3, 114–16, 120, 131, 155, 158 Kapuskasing, Ont., 113, 175 Kelsey-Hayes plant, 206 King, William Lyon Mackenzie, 36–43, 45–6, 51, 53–6, 59–61, 63–4, 66, 71, 78–80, 105, 110, 118, 123, 126–7, 130, 136, 138, 141, 143, 153, 155–6, 163, 193–5, 208, 229–30, 233–5, 241–3, 251, 255–8, 260–6, 269, 273, 276, 286, 289, 297 Kingston, A.C., 205 Kingsville, Ont., 206 Kirkland Lake, Ont., 242, 251, 253–5, 257, 259, 265, 277 Kitchener, Ont., 183, 209–10 Knights of Labor, 35 Labour and Industrial Relations Act (New Brunswick) (LIRA), 216 Labour Court (Ontario), 272, 277, 288 Labour Disputes Act (Alberta), 141, 220–1 Labour Gazette, 36, 42, 57–8 labour relations experts, 226–7, 311 Lalonde, Leon, 268 Lapointe, Ernest, 207–8, 225–6, 241 Laskin, Bora, 186, 198, 205, 228, 232, 264, 302–4, 306–7 Laurier, Wilfrid, 18, 35–8, 44–5, 48, 61–2, 64, 68 law: and the liberal state, 5–13; and workers’ collective action, 2–3, 5–6, 12. See also industrial legality, regimes of; legal discourses; legality/legalism Lawrence, Sam, 207 legal discourses, 6–9, 314 legality/legalism, 1–2, 4–10, 81, 279, 286, 289, 291, 294, 296, 300. See also industrial legality, regimes of Legislative Assembly (Ontario), 187–8, 211–12

Leier, Mark, 84 Lemieux, Rudolph, 51, 54, 56 Leopold, John, 162 Leslie, E.C., 162 Lethbridge, Alta, 51, 53–4, 69–72, 86 Lewis, John L., 117, 119, 127, 194 Liberal Party, 62 liberal state, 4–13, 18, 314–15 liberal voluntarism, 2–4, 14, 50, 150, 302, 306–7, 311, 313, 315 Limitations of Hours of Work Act (Canada), 166–7 LIRA (Labour and Industrial Relations Act) (New Brunswick), 216 Livett, Bob, 173 Livingstone, Dan, 119–20, 127 local authorities. See officials, local Logging Act (Newfoundland), 176 London, Ont., 63, 78 Lougheed, James, 47–8 Lucas, I.B., 105 Lumber and Sawmill Workers’ Union, 222 Lumber Workers’ Industrial Union (LWIU), 148, 174–5 Lumber Workers’ Industrial Union of Canada, 148 LWIU (Lumber Workers’ Industrial Union), 148, 174–5 McAdoo award, 99 McBride, Richard, 68 McCrea, Charles, 158 McCullagh, George, 208 Macdonald, Angus L., 218 Macdonald, E.H., 128 Macdonald, Hugh John, 113 McDonald detective agency, 115 McDougall, Dan, 73–4 MacEacheron, George, 218 McEacheron, Gregory, 217 McGeer, Gerald, 160 McGillivray, Alexander, 145 McGuire, Tom, 76 MacInnis, Angus, 224 McIntosh, J.C., 221, 223 Mackenzie, William, 75 McKinnon plant (St Catharines, Ont.), 252 Mackintosh, Margaret, 244–5

INDEX

McLachlan, J.B., 56, 119–20, 126–7 McLarty, Norman, 243, 246–8, 252, 256 MacLean, Allan, 279–80 Maclean, M.M., 233 Maclennan, F.S., 133 McNair, J.B., 215–17 MacNamara, Arthur, 280 McNaughton, Andrew, 158 MacNeil, C.G., 224–5 McTague, C.P., 236, 246, 254, 268–70 McVety, James, 92 magistrates, 26–7, 44, 52, 73–5, 81, 202, 207, 223, 239–40, 248, 294 Magog, Que., 80 Male Minimum Wage Act (British Columbia), 178–9 mandamus, 261 Manion, R.J., 156, 161 Manitoba, 94–5, 106–7, 113, 115, 117, 123–4, 140, 143–4, 158, 172, 197, 214 Manitoba Court of Appeal, 26, 30, 114, 134 Mann, Donald, 75 Manning, Ernest, 201 Maritime Labor Herald, 126, 128 Maritimes, 174, 270 Marsh, James F., 188–9 Martin, Paul, 280, 284 masculinity, 9 Massey-Harris, 21–2, 27 Master and Servant Act (Manitoba), 115 Master Plasterers’ Association, 31 Mathers, T.G., 25–6, 28, 30, 107, 115 mediation, 14, 56, 75, 78, 94–5, 164, 168, 171, 175–6, 181, 203, 208, 210, 212, 215, 221, 289 Meighen, Arthur, 99, 108–9, 111–12, 133, 259 Mellish, Humphrey, 120, 125 Mercier, Honoré, 177 Mercoal, Alta, 170 Meredith, W.R., 105–6 Metallic Roofing Company, 29–30 Metal Trades Council (MTC), 108, 113 Metcalfe, T.L., 114 Mewburn, Major General, 111 Mexico, 313 Middleton, William E., 67–8, 133–4 military, 34, 52–4, 62, 75–6, 85–6, 156, 290. See also militia; troops

391

militia, 18, 34, 41, 43–4, 48–51, 63–4, 66, 68, 75–6, 78–9, 84, 86, 111, 116, 125–9, 136, 169, 183 Militia Act, 111, 126–7, 129 Millard, Charles, 231, 233, 242–3, 258–9, 266, 289 Mine-Mill. See International Mine, Mill and Smelter Workers’ Union Miners’ Liberation League, 76 Mine Workers’ Union of Canada (MWUC), 145, 168–72 minimum employment standards, 2–3, 166–7, 173–4, 179, 185, 191, 198–9, 201–4, 219 Minimum Wage Act (Ontario), 200–1 Minimum Wage Board (Ontario) (MWB), 200–1 Minimum Wages Act (Canada), 166–7 Minister of Labour (British Columbia), 222, 271 Minister of Labour (Canada), 37–8, 58, 92, 99, 136, 141, 234, 236, 240–1, 246–7, 249–50, 252, 255, 259–60, 274–5, 295 Minister of Labour (Ontario), 182, 188–9 Minister of Labour (Quebec), 204 Minister of Lands and Forests (Ontario), 177 Minister of National Defence, 252 Minister of Natural Resources (Saskatchewan), 173–4 Minto, NB, 146, 214–15 Miramichi, NB, 214–15 Mitchell, Humphrey, 247, 250–1, 254–5, 257–8, 266, 269–70, 277, 279–80, 282–5 Mitchell, John, 54 Montreal, Que., 82, 94, 105, 118, 147, 180, 182–3, 202–4, 213, 228, 267, 291 Montreal Builders’ Exchange, 186 Montreal Gazette, 119 Montreal Shipping Federation, 77 Montreal Street Railway, 79 Montreal Trades and Labour Council, 202 Moodie, Frank, 98 Moore, Tom, 101–2, 233, 252, 257–8 Morrison, Justice, 85 Mosher, Aaron, 196, 242–3, 253, 257–9, 266, 272 Mounties (RNWMP, RCMP), 86, 98, 100, 111, 114, 125, 130, 156, 158–9,

392

INDEX

161–3, 168–9, 171–2, 188, 208, 215, 219, 252 MTC (Metal Trades Council), 108, 113 Mulock, William, 36, 42, 45 municipal authorities. See officials, local Murdock, James, 110, 130, 136 Murphy, Harvey, 171 Murray, G.M., 59 Murray, George, 126 mutuality, 5, 17 MWB (Minimum Wage Board) (Ontario), 200–1 MWUC (Mine Workers’ Union of Canada), 145, 168–72 Nanaimo, BC, 75 National Council of Women of Canada, 90 National Industrial Conference, 122 National Industrial Recovery Act (NIRA; US), 166, 179, 183, 187–9, 195, 201, 293 National Labor Relations Act (NLRA, ‘Wagner Act’; US), 194–6, 217–18, 225–7, 242, 249, 257, 261, 267, 273–4, 293, 303 National Labor Relations Board (NLRB; US), 194, 226 National Labour Supply Council (NLSC), 249, 252 National Liberal Federation (NLF), 264, 279 National Steel Car, 240–2 National Unemployed Workers Association (NUWA), 153, 155 National War Labor Board (US), 280, 282, 293 National War Labour Board (NWLB; Canada), 266–70 National War Labour Relations Board (NWLRB; Canada), 276–82, 297 NBFL (New Brunswick Federation of Labour), 201, 216–17 NBFLU (New Brunswick Farmer-Labour Union), 214–15, 217 New Brunswick, 123, 140, 146, 158, 176–7, 197, 201, 214–17 New Brunswick Farmer-Labour Union (NBFLU), 214–15, 217

New Brunswick Federation of Labour (NBFL), 201, 216–17 New Brunswick Supreme Court, 77 Newfoundland, 176, 197 Newfoundland Industrial Workers’ Association, 93 New Waterford, NS, 131 New Zealand, 185 Nicholson, George Brecken, 96 NIRA. See National Industrial Recovery Act NLF (National Liberal Federation), 264, 279 NLRA. See National Labor Relations Act NLRB (National Labor Relations Board; US), 194, 226 NLSC (National Labour Supply Council), 249, 252 Noble, R.M., 112–13 Noranda, Que., 172, 291 Norris, T.C., 106, 124 North Pines Nickel Mine, 94 Nova Scotia, 40, 56, 59, 70, 72, 74, 80, 93, 117, 119, 123, 125–6, 128–31, 136, 140–1, 144, 146, 158–9, 172, 197, 200, 217–19, 226–7, 229, 239, 263, 266, 282, 287, 291 Nova Scotia Supreme Court, 146, 297 NUWA (National Unemployed Workers Association), 153, 155 NWLB (National War Labour Board; Canada), 266–70 NWLRB (National War Labour Relations Board; Canada), 276–82, 297 OBU.

See One Big Union O’Connor, G.B., 282 O’Donoghue, John G., 26–7, 39, 92, 132–3, 143 officials: federal, 14, 42, 66, 73, 94–6, 160, 164, 175, 221, 243, 254, 269, 274, 282; local, 13–14, 17–18, 43–4, 52, 63, 66, 68, 74, 78–9, 81–5, 98, 126–7, 129–31, 154–5, 158, 160–1, 168–9, 175–6, 183, 210–11, 239, 252, 281, 286, 290, 306; provincial, 14, 18, 160, 164, 175, 189, 212–13, 221–3, 243; state, 8, 88, 91, 93, 95, 100, 102, 104–5, 117, 150–1, 154, 164, 208, 265, 287, 306

INDEX

O’Hearn, W.J., 119 One Big Union (OBU), 106, 117–18, 131, 145–6, 148 Ontario, 19, 21–2, 24, 26, 39–40, 43, 49, 76, 78, 87, 94–5, 102, 121, 123, 134, 140–1, 144, 148, 158–9, 174–7, 181, 183–4, 187–91, 197, 200–1, 205– 12, 223, 228–9, 231–2, 234, 238–9, 255, 257–8, 260–1, 263–4, 267, 271–2, 274, 277, 281, 283–4, 287–8, 290, 294, 296–7, 306, 311, 315 Ontario Court of Appeal, 29, 133, 144, 303, 306 Ontario High Court, 231–2 Ontario Labour Relations Board, 277–8 Ontario Provincial Police (OPP), 97, 101, 148–9, 175, 188, 206–10, 221, 231, 255 Ontario Railway and Municipal Board Act, 78 Ontario Superior Court, 165 open shop, 17, 19, 32, 71, 98, 139, 164, 206, 218, 228. See also closed shop OPP. See Ontario Provincial Police ORC (Order of Railway Conductors), 62 order, public, 12, 14, 17, 26–7, 34, 43–4, 50, 52, 78, 110, 112, 136, 199, 203, 306 Order of Railway Conductors (ORC), 62, 92 Order of Railway Telegraphers, 95 Orders-in-Council: during the Great Depression, 158–9, 162; during World War I, 89, 93, 97–100, 102, 105, 107, 109, 118, 123, 225; during and following World War II, 231, 234–7, 240–2, 247–54, 260, 264, 273–80, 285–6, 288–9, 292, 294–5, 297, 300–1 Oshawa, Ont., 206, 208 Ottawa, 160–1 Owen, Walter S., 295 Owen Sound, Ont., 66–7 Pacific Lime (employer), 222–3 ‘Padlock Law’, 212–13 Paris Peace Conference, 107, 121 Patterson, Margaret, 181–2 Pattullo, Duff, 179,222 Pearson, George, 222

393

Peck Rolling Mills, 237, 258 Perdue, W.E., 114–15 Pesotta, Rose, 202 Pettipiece, R.P., 83–4 picketing, 18–19, 21, 24–8, 32–3, 48–9, 63, 66, 73, 76–7, 81–2, 84–5, 87, 94, 107, 110, 115, 125, 130–4, 142–3, 145, 147–9, 154, 165–6, 174, 180–3, 198–9, 203–6, 208, 210–11, 215, 220–1, 223, 225–6, 231–2, 283–4, 287, 289–91, 294, 296–7, 303, 307, 311 Pinkerton’s, 75 Pioneer Mine, 224 Pluralism. See industrial pluralism Point Edward, Ont., 206–7 police, 14, 32, 34, 41, 52, 69, 75–6, 78, 81–3, 85, 87, 94–102, 104–5, 110, 116, 119–20, 125–7, 129–34, 149, 155–63, 168–72, 174–6, 180–3, 188, 198, 204, 206–10, 212, 219–20, 223–4, 231, 234, 238–9, 252, 255, 281, 287, 289–90, 306; mounted, 17, 83, 127, 174; special, 49, 76 86–7, 99, 111, 126, 209. See also special constables; railway constables Pooley, R.W., 175 Porcupine, Ont., 76–7, 80, 86 Port Arthur, Ont., 66–7, 79–80, 101 Powell River Paper Company, 136 Prairies, 96 Prevost Commission, 271 Price, Samuel, 75 Price, W.H., 158, 181, 184 Prince Edward Island, 141, 158, 197, 211, 223 Prince Rupert, BC, 84, 171–2 Princeton, BC, 170 private property, 11–12, 305, 313, 315, See also property rights Privy Council (Ottawa), 120 Professional Syndicates Act (Quebec) (PSA), 124–5, 184, 202, 204, 213 property rights, 2, 6, 11–12, 26, 36, 59, 86, 88, 123, 125, 130, 134, 138, 174, 192, 198, 206–7, 211, 224, 287, 302, 306, 315. See also private property Province (Vancouver newspaper), 296 Provincial Workmen’s Association (PWA), 49, 59, 70, 72–3, 93

394

INDEX

PSA.

See Professional Syndicates Act public order. See order, public PWA. See Provincial Workmen’s Association Quebec, 40, 43, 49, 57, 74, 79–80, 123–5, 140–1, 144, 148, 172, 174–7, 183–7, 191, 197, 202–4, 212–14, 263–4, 271–3, 281, 287, 294–6, 298 Quebec City, 147 Quebec Court of Appeal, 133, 172, 240 Quebec Court of King’s Bench, 238–40 Queen, John, 123 Queen Charlotte Islands, 271 Racketti, Harry, 176 radicalism, 89–103, 105–7, 111–12, 115, 117–20, 123, 130, 142–3, 145–6, 149–51, 153–4, 156–7, 165, 176–7, 181, 190, 245, 305 railway constables, 67 Railway Labour Disputes Act (RLDA), 42–3, 54 Rand, Ivan, 1, 284–5, 293, 304, 306 Rand formula, 285–6, 290–1 Rapid Grip Engraving Co., 144 RCIR (Royal Commission on Industrial Relations), 107–8, 121–2 RCMP (Royal Canadian Mounted Police). See Mounties RCWU (Relief Camp Workers’ Union), 159–62 Red International Labour Union, 119 Regina, Sask., 161–2 Regina Manifesto, 195 Reid, John, 91 Reid Newfoundland (employer), 93 Reimer, Chad, 116–17 Relief Act (Canada) (1933), 159, 162 relief camps. See Department of National Defence (DND) relief camps Relief Camp Workers’ Union (RCWU), 159–62 Renners, Lambert, 145 replacement workers, 24, 28, 30, 32, 34, 79, 108, 145, 150, 164, 168, 171–2, 175, 182, 188, 210. See also scabs; strikebreakers and strikebreaking representative actions, 23, 29, 31, 48, 134, 144

Retail Merchants Association (Alberta), 189 Rex v. Renners, 142 Rhodes, Edgar N., 141, 146 Richards, Justice, 25 Riddell, William Renwick, 206 rights, 10–12. See also contract rights; property rights Rights of Labour Act (Ontario), 296 Riot Act, 66, 111, 116, 160, 176 riots, 62, 66, 73, 78–9, 87, 105, 116, 125, 127, 159, 162–3, 207 Ritchie, James J., 125 RLDA (Railway Labour Disputes Act), 42–3, 54 RNWMP (Royal North West Mounted Police). See Mounties Robertson, Gideon, 95–7, 102, 107–10, 117–18, 120–2 Robertson, J.W., 127 Robson, H.A., 112 Roebuck, Arthur, 188, 207–9, 211 Rogers, Joseph E., 97, 101–2 Rogers, Norman (Norm), 208, 225 Rogers, Robert, 72 Rollo, Walter, 132 Roosevelt, Franklin D., 166, 179–80, 187, 193 Rose, H.E., 133, 165 Rossland, BC, 19, 22–4, 26, 37–9, 45 Rosvall, Viljo, 148–9 Rother v. ILGWU, 133 Rouyn, Que., 175–7 Rowe, Elliot S., 45 Rowell, Newton Wesley, 96, 98, 100, 120 Royal Canadian Mounted Police (RCMP). See Mounties royal commissions, 64, 80, 87, 92–3, 105, 127, 146, 168–9, 252, 258, 266, 271; Royal Commission on Industrial Disputes in the Province of British Columbia (1903), 39, 45–9, 51, 54, 60, 169; Royal Commission on Industrial Relations (RCIR), 107–8, 121–2; Royal Commission on Price Spreads, 167, 180 Royal North West Mounted Police (RNWMP). See Mounties Russell, Bob, 58 Russell, Judge Benjamin, 125

INDEX

Russell, R.B., 114–15 Russian Revolution, 96. See also Bolshevik Revolution St Catharines, Ont., 209, 252 St Hyacinth, Que., 147 Saint John, NB, 79, 94 Saint-Pierre, H.C., 31 Sanson, Havelock, 215 Saskatchewan, 123, 140, 159, 161–3, 168, 173–4, 197, 214, 264, 267, 271–2, 282, 295–7, 308, 311 Saskatchewan Provincial Police, 131 Saturday Night, 231 Sault Ste Marie, Ont., 266 scabs, 31–2, 47–8, 73, 76–8, 94, 147, 170–1, 174, 180–2, 223. See also replacement workers; strikebreaking and strikebreakers Scarlett, Sam, 169 Schuberg case, 144 SDP (Social Democratic Party), 91, 100 Second Industrial Revolution, 2, 16–18, 50–3, 70, 88, 150 Senate, 33, 47–8, 95, 109, 123, 141, 143, 155, 168 sexual division of labour, 16, 309 Shane, Bernard, 181, 202–3 Shawinigan, Que., 252 Shell Committee, 91 Sherman, Frank, 54 Sherwood, Percy, 101–2 Shortt, Adam, 29, 56–9 Skelton, O.D., 120 Sloan, James, 169–70 Slocan, BC, 37 Smith, Ralph, 36, 39, 45 Snider case, 123, 136–8, 140, 152, 193 Social Credit Party, 219, 272 Social Democratic Party (SDP), 91, 100 Socialist Party of Canada (SPC), 82–4 Southam, 292 South Bend, Indiana, 63 SPC (Socialist Party of Canada), 82–4 special constables. See constables, special spies, 22, 98, 130, 140 Springhill, NS, 73, 173 Spruce Falls Pulp and Paper Co., 175 state: and workers’ collective action, 2–3. See also liberal state

395

Steel Workers Organizing Committee (SWOC), 207, 209, 218–19, 231, 237, 240–1, 243, 247, 250–1, 258, 266 Stelco, 279, 286–90 Steward, Ronald, 155 Stewart, Bryce M., 244, 252, 269–70 Stokaluk, John, 171 Stratford, Ont., 102, 132, 183–4 Stratford Trades and Labour Council, 132 strikebreakers and strikebreaking, 19, 22, 24–8, 32, 34–9, 49, 61, 63–6, 68,703, 75–9, 81, 86–8, 94, 108–12, 126, 133, 145, 148, 181–2, 188, 206, 210, 219, 255, 281, 284, 287, 289–90. See also replacement workers; scabs strike-related activity, 15, 238; criminal prosecutions for, 49, 239, 297; and injunctions, 18–19; and public order, 12. See also collective action, workers’; strikes strikes: and arbitration, 4, 18, 40–3, 46, 78, 81–2, 102, 118, 147–8, 150, 183, 210, 223, 236, 255, 269–70, 275, 278–9, 283–4; and conciliation, 18, 29, 34–46, 48–54, 56–82, 85, 87–8, 92–3, 95, 97–9, 101–3, 106, 115, 118, 136–8, 141, 150, 164–5, 173, 183–4, 197–8, 208, 210, 212, 216, 219, 221–4, 236, 238, 240, 247–54, 258, 260–1, 266, 269–70, 272–4, 282–3, 290, 295; and the courts, 18–34, 38, 41, 48, 50, 52, 73–7, 81, 87, 94–5, 113–16, 119–20, 125–6, 131–4, 136–8, 142–3, 145–6, 165–6, 170, 172, 180, 198–9, 205–7, 210, 212, 220, 223, 228, 238–9, 248, 296–7, 304, 306–7; and the federal government, 14, 18, 34–54, 56–76, 79–81, 87–8, 92–5, 97–103, 105, 107–16, 118–20, 125–30, 132–4, 136–8, 140–1, 143, 150–1, 164–6, 168–9, 171, 175–6, 197–8, 207–8, 215–16, 221, 224–5, 229, 232–4, 236–62, 264–70, 273–6, 278, 280–7, 289–90, 293, 295, 300, 311; general, 92, 94, 97–102, 106–17, 120, 130, 181–3, 215; during the Great Depression, 159–66, 168–77, 180–4, 188, 191, 193, 197–9, 201, 203–12, 214–26; and legality, 1; and the military, 18, 34, 43–4, 48–54, 62–4,

396

INDEX

66, 68, 73–6, 78–9, 84–6, 111, 116, 126–9, 136, 169, 183, 251–2, 284, 290; in 1919–1929, 104–21, 125–34, 136–43, 145–51, 265, 290–1; and the police, 14, 32, 34, 52, 67, 69, 75–6, 78, 81–2, 85–7, 94–5, 99–100, 104–5, 110–11, 116, 119–20, 125–7, 129–34, 145, 148–9, 164, 168–72, 174–6, 180–3, 188, 198, 204, 206–10, 212, 219–20, 223–4, 238–9, 252, 255, 281, 287, 289–90, 306; and provincial governments, 14, 70–1, 74–6, 78, 81, 84, 86–7, 106–7, 112–13, 119, 125–30, 132, 134, 136, 138, 140–3, 145–6, 148–9, 164–5, 168–77, 181–4, 188, 191, 197–9, 201, 203–4, 206–12, 215–17, 219–24, 238–9, 243–4, 251–2, 255, 272–3, 278, 281, 283–7, 289–90, 295–7; sit-down, 206–9, 211, 220, 251; sympathy, 21, 31–2, 39, 45, 48–9, 60, 63, 76, 82, 97, 102, 108, 112–15, 117, 119–20, 133, 160, 240, 284, 291, 294; wildcat, 245, 285–6, 305–6; and women, 16, 80, 82, 131–2, 183, 220; before World War I, 16–54, 56–82, 84–8, 150; during World War I, 91–5, 97–103, 150–1; during World War II, 228–9, 232–4, 236–70, 272–81, 285; following World War II, 265, 280–97, 300, 303–6, 310–12. See also collective action, workers’; picketing; strikebreakers and strikebreaking; strike-related activity Sudbury, Ont., 157–8, 256 Sullivan, Pat, 232–3, 258, 264 Superior Court of British Columbia, 23 Superior Court of Manitoba, 94 Supreme Court of Canada, 134, 142, 145, 178, 303–4, 306, 312 Supreme Court of Nova Scotia, 74, 119 Swift plant (Edmonton), 220 SWOC. See Steel Workers Organizing Committee Sydney, NS, 119, 126, 218–19 Taff Vale, 23–4, 29 Taft-Hartley Act (United States), 296, 298 Taschereau, L.-A., 177, 184, 186 Templeton, William, 45 Thiel Detective Service, 26, 63, 86–7

Thorn, J.O., 29 Thunder Bay, Ont., 175 Tilley, Leonard, 177 Timmins, Ont., 158 TLC. See Trades and Labor Congress Tolmie, S.F., 175 Toronto, Ont., 19, 33, 63, 78, 82, 92, 95, 99, 102, 105, 117, 138, 144–5, 147, 149, 155–6, 180–3, 198, 200, 205–6, 248 Toronto Cloak Manufacturers’ Protective Association, 144 Toronto District Labour Council, 181 Toronto Police Commission, 181 Toronto Police Court, 26–7 Toronto Trades and Labour Council, 231 torts, new economic, 18–19 Trade Disputes Act (Alberta), 190 Trade Disputes Act (Great Britain), 32 Trade Disputes Act (Quebec), 147–8 Trades and Labor Congress (TLC), 24, 26–7, 30, 32, 34–6, 39, 43–5, 49, 60–1, 81–2, 84–7, 90–2, 94–7, 100–2, 106–7, 111, 123, 125, 132–4, 139–43, 147, 164, 168, 188, 193–9, 205, 211–14, 216, 218–19, 221–2, 225–6, 229, 232–4, 242, 245, 249, 251–2, 254, 257–8, 260, 262, 264, 268, 270, 275, 277, 281, 294, 297–8, 305, 310 trades boycotts. See boycotts, trades Trade Union Act (Nova Scotia), 218 trade unions, 161; and the courts, 18–34, 38, 48, 52, 73–4, 76–7, 85, 87, 106–7, 118, 134, 142–4, 146, 150, 170, 180, 198–9, 206, 223, 228, 231–2, 238, 248, 261, 272, 277, 287–8, 294, 296, 304, 306–7; craft, 17, 19, 22, 24, 32–5, 39–41, 49, 60, 62, 65, 82, 84, 88, 90, 93, 95, 139, 152, 214, 242, 305, 308; and the federal government, 18, 27, 34–49, 51, 53–4, 56–81, 87–8, 91–103, 105–8, 110, 117–23, 125, 130, 132, 136, 141–5, 150–1, 164–9, 175–6, 192, 195, 197–8, 208, 215–16, 221, 225–6, 229–70, 273–87, 289–91, 293–4, 297–301, 305, 310; during the Great Depression, 153–4, 163–76, 179–227; and immigrant workers, 17, 34–5, 62–3, 150; industrial, 17, 40–1, 43, 45, 49, 51, 70, 77–8, 80, 82, 84,

INDEX

88, 90, 93, 95, 117, 125, 127, 132, 139–40, 152–3, 164, 169, 194–7, 205–6, 215, 217, 221, 229, 231, 242–3, 249, 265, 280, 283, 290–1, 300, 303, 305, 310; in 1919–1929, 90, 104–52, 290; and provincial governments, 70, 74–6, 81, 83–4, 87, 95, 105–7, 112, 119, 122–7, 132, 143, 146, 148, 164–5, 168–76, 179–80, 182–91, 195–206, 208–24, 226, 231–2, 234–5, 243–4, 255, 257–8, 260–1, 265, 271–4, 277–8, 281–2, 288, 290, 293–7, 307; recognition of, 38–41, 45, 47, 58–9, 61, 65, 70–1, 75–8, 82, 90, 101, 103, 106, 118, 121–2, 127, 132, 141–2, 146, 148, 164, 169, 174–5, 192, 194–5, 206, 209–12, 214–16, 218, 220–2, 227, 229, 233–4, 237–8, 240–3, 245–7, 250–1, 254–6, 260–1, 264–5, 267, 271, 273, 275–6, 291–2, 294, 296, 299–300, 302, 305; and regimes of industrial legality, 3, 9–10, 12–13, 81–2, 85, 88, 146, 195, 227, 265, 280, 283, 299–301, 306, 310, 315; and women, 90, 94, 131–2, 299, 311; before World War I, 2–3, 17–54, 56–65, 68–88, 150; during World War I, 89–103, 118, 120, 122, 125, 150–1; during World War II, 3, 9–10, 228–81, 293, 297, 301; following World War II, 265, 280–312, 315. See also collective action, workers’ Trade Unions Act (British Columbia), 24 Trade Unions Act (Saskatchewan), 272 Trail (British Columbia), 100 Tremblay, Gérard, 184, 186 Trépanier, Raoul, 202–3 troops, 17–18, 43–4, 49–51, 63, 73–4, 79, 155, 234, 239, 251–2, 284. See also military; militia UAW.

See United Automobile Workers (United Brotherhood of Railway Employees), 45–6 UE. See United Electrical, Radio and Machine Workers UFA. See United Farmers of Alberta UMWA. See United Mine Workers of America

397

Unemployed Council of Montreal, 156–7 unions. See trade unions union shop, 203, 281–2, 285 United Automobile Workers (UAW), 206, 208–9, 231, 239, 252, 255–6, 266, 276, 278, 283–4, 286, 300 United Brotherhood of Railway Employees (UBRE), 45–6 United Electrical, Radio and Machine Workers (UE), 242, 248, 259, 266, 287 United Electrical Workers, 209 United Farmers of Alberta (UFA), 141, 171, 174, 190, 201 United Farmers of Ontario, 123 United Farmers Party (Manitoba), 214 United Federation of Textile Workers of America, 80 United Mine Workers of America (UMWA), 49, 53–4, 56, 59–60, 70–6, 93, 98, 117–19, 129–30, 141, 145–6, 172–3, 194, 214–17, 231 United Packing (Calgary), 220 United Rubber Workers of America (URWA), 209–10 United States, 71, 83, 208, 243, 255, 273, 282, 298; anti-Communism in, 310; CIO in, 194–5, 286; Free Trade Agreement with, 313; importation of workers from, 34, 36–9, 63, 87, 144; injunctions in, 18; number of strikes in, 197; SWOC organizing efforts in, 219; unions in, 46, 280, 293 United States Rubber Corporation, 210 United Steel Workers of America (USWA), 287–9, 300 United Textile Workers of America, 132, 206 Ursel, Jane, 310 URWA (United Rubber Workers of America), 209–10 USWA (United Steel Workers of America), 287–9, 300

UBRE

Valleyfield, Que., 79 Vancouver, BC, 83–4, 155, 158–61, 174, 221, 263 Vancouver Asiatic Exclusion League, 61 Vancouver Island, 49, 70, 74–6, 80, 86 Vancouver Sun, 68–9

398

INDEX

Vancouver Trades and Labour Council, 32, 83, 99 Versailles Treaty, 107 Victoria, BC, 158 voluntarism. See industrial voluntarism; liberal voluntarism Voutilainen, John, 148–9 Vulcan Iron Works, 25–6 Wagner Act. See National Labor Relations Act Walsh, W.L., 131 War Labor Board (United States), 273 War Measures Act, 89, 105, 112, 118, 123, 229–30. See also Defence of Canada Regulations Wartime Labour Relations Board (Canada), 286 Wartime Labour Relations Regulations (Canada), 264–5, 270, 273–81, 283, 285, 293, 299 ‘watching and besetting’ laws, 25–7, 29, 132–3, 142–5, 165, 210, 225, 296–7 Watson, Lord, 136 Webber, Jeremy, 59 Weekly Rest in Industrial Undertakings Act (Canada), 166–7 Weir, Robert, 161 Welland, Ont., 206, 211 Western Coal Operators Association, 71–2, 117 Western Federation of Miners (WFM), 22–4, 37–40, 45–6, 49, 60, 76–7, 92, 94 Westinghouse, 279, 287 WFM. See Western Federation of Miners Wilkinson, F.H., 254 Williamson, Constable, 223 Willis, J.S., 192 Winch, Harold, 222 Windsor, Ont., 155, 206, 209, 231, 255, 283–4, 289–90 Windsor Theatre (Toronto), 133 Winnipeg, Man., 25, 78, 94, 99, 108–10, 112–14, 116–17, 157, 199

Winnipeg General Strike, 107–17, 120–1, 123, 130, 143, 151, 161, 283–4 Winnipeg Trades and Labour Council, 101–2, 106, 108, 196 Wobblies. See Industrial Workers of the World Wolvin, Roy, 126 women, 15, 147; in Besco food riot, 125; and the Hours of Work Act (Alberta), 202; labour force participation of, 2, 16, 309–10, 313; protection for working, 123–4; and strikes, 16, 80, 82, 131–2, 183, 220; and trade unions, 90, 94, 131–2, 299, 311; wages paid to, 3, 98, 121, 123–4, 154, 179–80, 186 Women’s Labour League, 90 Woodsworth, J.S., 111, 115–16, 128–30, 136, 143, 156, 225 workers: commodification of, 5–6, 9, 12, 313–14; ideological effects of law on, 8; immigrant, 17, 34–5, 61–3, 65–8, 85, 87–8, 94, 310; and the liberal state, 4–7, 10; and regimes of industrial legality, 10, 12–13, 15, 81, 195, 310; semi-skilled, 17, 90, 139, 152; skilled, 17–19, 21–2, 28, 31, 33, 62, 65, 81–2, 84; and social solidarity, 9; unionized, 4; unskilled, 17–18, 35, 40–1, 43, 48–9, 52, 65, 90, 94, 150. See also collective action, workers’; radicalism; strike-related activity; strikes; trade unions Workers’ Unity League (WUL), 153, 159, 163–4, 169, 171–2, 174, 180, 182–4, 188, 192–4, 219 working class, fragmentation of, 16–17 World War I, 89–106, 118, 120, 122, 125, 136, 150–1, 229–30, 233–6, 238, 290 World War II, 3, 9–10, 228–45, 251–2, 254–5, 261–75, 280–1, 283, 285, 291, 293, 295–6, 299, 301, 303, 306, 308–9 Wright, W.H., 157 WUL. See Workers’ Unity League Wylie, Edmund, 168–9

PUBLICATIONS OF THE OSGOODE SOCIETY FOR CANADIAN LEGAL HISTORY

David H. Flaherty, ed., Essays in the History of Canadian Law, Vol. I, 1981. Marion MacRae and Anthony Adamson, Cornerstones of Order: Courthouses and Town Halls of Ontario, 1784–1914, 1982. David H. Flaherty, ed., Essays in the History of Canadian Law, Vol. II, 1983. David Williams, Duff, A Life in the Law, 1984. Patrick Brode, Sir John Beverley Robinson: Bone and Sinew of the Compact, 1984. James Snell and Frederick Vaughan, The Supreme Court of Canada: History of the Institution, 1985. Paul Romney, Mr. Attorney: The Attorney General for Ontario in Court, Cabinet and Legislature, 1791–1899, 1986. Martin Friedland, The Case of Valentine Shortis: A True Story of Crime and Politics in Canada, 1986. C. Ian Kyer and Jerome Bickenbach, The Fiercest Debate: Cecil A. Wright, the Benchers and Legal Education in Ontario, 1923–1957, 1987. Robert Sharpe, The Last Day, the Last Hour, The Currie Libel Trial, 1988. John D. Arnup, Middleton: The Beloved Judge, 1988. Desmond Brown, The Genesis of the Canadian Criminal Code of 1892, 1989.

Patrick Brode, The Odyssey of John Anderson, 1989. Jim Phillips and Philip Girard, eds., Essays in the History of Canadian Law, Vol. III, Nova Scotia, 1990. Carol Wilton, ed., Essays in the History of Canadian Law, Vol. IV, Beyond the Law, Lawyers and Business in Canada 1830–1930, 1990. Constance Backhouse, Petticoats and Prejudice: Women and Law in Nineteenth Century Canada, 1991. Brendan O’Brien, Speedy Justice, The Tragic Last Voyage of His Majesty’s Vessel Speedy, 1992. Robert Fraser, ed., Provincial Justice, Upper Canadian Legal Portraits from the Dictionary of Canadian Biography, 1992. Greg Marquis, Policing Canada’s Century: A History of the Canadian Association of Chiefs of Police, 1993. Murray Greenwood, Legacies of Fear, Law and Politics in Quebec in the Era of the French Revolution, 1993. Patrick Boyer, A Passion for Justice: The Legacy of James Chalmers McRuer, 1994. Charles Pullen, The Life and Times of Arthur Maloney: The Last of the Tribunes, 1994. Jim Phillips, Tina Loo, and Susan Lewthwaite, eds., Essays in the History of Canadian Law, Vol. V, Crime and Criminal Justice, 1994.

Brian Young, The Politics of Codification: The Lower Canadian Civil Code of 1866, 1994. David Williams, Just Lawyers—Seven Portraits, 1995. Hamar Foster and John McLaren, eds., Essays in the History of Canadian Law, Vol. VI, British Columbia and the Yukon, 1995. W.H. Morrow, ed., Northern Justice, the Memoirs of Mr. Justice William G. Morrow, 1995. Beverley Boissery, A Deep Sense of Wrong, The Treason, Trials and Transportation to New South Wales of Lower Canadian Rebels after the 1838 Rebellion, 1995. Carol Wilton, ed., Essays in the History of Canadian Law, Vol. VII, Inside the Law: Canadian Law Firms in Historical Perspective, 1996. William Kaplan, Bad Judgment, The Case of Mr. Justice Leo A. Landreville, 1996. Murray Greenwood and Barry Wright, eds., Canadian State Trials, Volume I, Law, Politics and Security Measures, 1608–1837, 1996. James W. St. G. Walker ‘Race’, Rights and the Law in the Supreme Court of Canada: Historical Case Studies, 1997. Lori Chambers, Married Women and Property Law in Victorian Ontario, 1997. Patrick Brode, Casual Slaughters and Accidental Judgments, Canadian War Crimes and Prosecutions, 1944–1948, 1997. Ian Bushnell, The Federal Court of Canada, A History, 1875–1992, 1997.

Sidney Harring, White Man’s Law: Native People in Nineteenth-Century Canadian Jurisprudence, 1998. Peter Oliver, ‘Terror to Evil-Doers’: Prisons and Punishments in Nineteenth-Century Ontario, 1998. Constance Backhouse, Colour-Coded: A Legal History of Racism in Canada, 1900–1950, 1999. G. Blaine Baker and Jim Phillips, eds., Essays in the History of Canadian Law, Vol. VIII, In Honour of R.C.B. Risk, 1999. Richard W. Pound, Chief Justice W.R. Jackett, By the Law of the Land, 1999. David Vanek, Fulfilment, Memoirs of a Criminal Court Judge, 1999. Barry Cahill, ‘The Thousandth Man’: A Biography of James McGregor Stewart, 2000 A.B. McKillop, The Spinster and the Prophet, Florence Deeks, H.G. Wells, and the Mystery of the Purloined Past, 2000. Beverley Boissery and F. Murray Greenwood, Uncertain Justice: Canadian Women and Capital Punishment, 2000. Bruce Ziff, Unforeseen Legacies: Reuben Wells Leonard and the Leonard Foundation Trust, 2000. Ellen Anderson, Judging Bertha Wilson: Law as Large as Life, 2001. Judy Fudge and Eric Tucker, Labour Before the Law: Collective Action in Canada, 1900–1948, 2001. Laurel Sefton MacDowell, Renegade Lawyer: The Life of J.L. Cohen, 2001.

THE CANADIAN SOCIAL HISTORY SERIES Terry Copp, The Anatomy of Poverty: The Condition of the Working Class in Montreal, 1897–1929, 1974. ISBN 0–7710–2252–2

Ruth Roach Pierson, “They’re Still Women After All”: The Second World War and Canadian Womanhood, 1986. ISBN 0–7710–6958–8

Gregory S. Kealey and Peter Warrian, Editors, Essays in Canadian Working Class History, 1976 isbn 0–7710–4477–1

Bryan D. Palmer, The Character of Class Struggle: Essays in Canadian Working Class History, 1850–1985, 1986. ISBN 0–7710–6946–4

Alison Prentice, The School Promoters: Education and Social Class in Mid-Nineteenth Century Upper Canada, 1977. ISBN 0–8020–8692–6

Alan Metcalfe, Canada Learns to Play: The Emergence of Organized Sport, 1807–1914, 1987. ISBN 0–7710–5870–5

Susan Mann Trofimenkoff and Alison Prentice, Editors, The Neglected Majority: Essays in Canadian Women’s History, Volume I, 1977. isbn 0–7710–8595–8 John Herd Thompson, The Harvests of War: The Prairie West, 1914–1918, 1978. ISBN 0–7710–8560–5 Donald Avery, “Dangerous Foreigners”: European Immigrant Workers and Radicalism in Canada 1896–1932, 1979. isbn 0–7710–0826–0 Joy Parr, Editor, Childhood and Family in Canadian History, 1982. ISBN 0–7710–6938–3 Howard Palmer, Patterns of Prejudice: A History of Nativism in Alberta, 1982. isbn 0–7710–6947–2 Tom Traves, Editor, Essays in Canadian Business History, 1984. isbn 0–7710–8570–2 Alison Prentice and Susan Mann Trofimenkoff, Editors, The Neglected Majority: Essays in Canadian Women’s History, Volume 2, 1985. ISBN 0–7710–8583–4

Marta Danylewycz, Taking the Veil: An Alternative to Marriage, Motherhood, and Spinsterhood in Quebec, 1840–1920, 1987. ISBN 0–7710–2550–5 Craig Heron, Working in Steel: The Early Years in Canada, 1883–1935, 1988. ISBN 0–7710–4086–5 Wendy Mitchinson and Janice Dickin McGinnis, Editors, Essays in the History of Canadian Medicine, 1988. ISBN 0–7710–6063–7 Joan Sangster, Dreams of Equality: Women on the Canadian Left, 1920–1950, 1989. ISBN 0–7710–7946–X Angus McLaren, Our Own Master Race: Eugenics in Canada, 1885–1945, 1990. ISBN 0–7710–5544–7 Bruno Ramirez, On the Move: French-Canadian and Italian Migrants in the North Atlantic Economy, 1860–1914, 1991. ISBN 0–7710–7283–X Mariana Valverde, “The Age of Light, Soap and Water”: Moral Reform in English Canada, 1885–1925, 1991. ISBN 0–7710–8689–X

Bettina Bradbury, Working Families: Age, Gender, and Daily Survival in Industrializing Montreal, 1993. ISBN 0–19–541211–7

Geoffrey Reaume, Remembrance of Patients Past: Patient Life at the Toronto Hospital for the Insane, 1870–1940, 2000. isbn 0–19–541538–8

Andrée Lévesque, Making and Breaking the Rules: Women in Quebec, 1919–1939, 1994. ISBN 0–7710–5283–9

Miriam Wright, A Fishery for Modern Times: The State and the Industrialization of the Newfoundland Fishery. 1934–1968, 2001. isbn 0–19–541620–1

Cecilia Danysk, Hired Hands: Labour and the Development of Prairie Agriculture, 1880–1930, 1995. ISBN 0–7710–2552–1 Kathryn McPherson, Bedside Matters: The Transformation of Canadian Nursing, 1900–1990, 1996. ISBN 0–8020-8679-9 Edith Burley, Servants of the Honourable Company: Work, Discipline, and Conflict in the Hudson’s Bay Company, 1770–1870, 1997. isbn 0–19–541296–6 Mercedes Steedman, Angels of the Workplace: Women and the Construction of Gender Relations in the Canadian Clothing Industry, 1890–1940, 1997. isbn 0–19–54308–3 Angus McLaren and Arlene Tigar McLaren, The Bedroom and the State: The Changing Practices and Politics of Contraception and Abortion in Canada, 1880–1997, 1997. isbn 0–19–541318–0 Kathryn McPherson, Cecilia Morgan, and Nancy M. Forestell, Editors, Gendered Pasts: Historical Essays in Feminity and Masculinity in Canada, 1999. isbn 0–8020-8690–X Gillian Creese, Contracting Masculinity: Gender, Class, and Race in a White-Collar Union, 1944–1994, 1999. isbn 0–19–541454–3

Judy Fudge and Eric Tucker, Labour Before the Law: The Regulation of Workers’ Collective Action in Canada, 1900–1948, 2001. isbn 0-8020-3793-3 Mark Moss, Manliness and Militarism: Educating Young Boys in Ontario for War, 2001. isbn 0–19–541594–9 Joan Sangster, Regulating Girls and Women: Sexuality, Family, and the Law in Ontario 1920–1960, 2001. isbn 0–19–541663–5 Reinhold Kramer and Tom Mitchell, Walk Towards the Gallows: The Tragedy of Hilda Blake, Hanged 1899, 2002. isbn 0–19–541686–4 Mark Kristmanson, Plateaus of Freedom: Nationality, Culture, and State Security in Canada, 1940–1960, 2002. isbn 0–19–541866–2 (case) isbn 0–19–541803–4 (paper) Robin Jarvis Brownlie, A Fatherly Eye: Indian Agents, Government Power, and Aboriginal Resistance in Ontario, 1918–1939. 2003 isbn 0–19–541891–3 (case) isbn 0–19–541784–4 (paper)